Torts Series Final

K.R.
Mangalam University Law of Torts & Consumer Protection Act, 1986
MANJU BHATIA AND ANR. v. NEW DELHI MUNICIPAL

COUNCIL AND ANR.
Manju Bhatia (Mrs.) and Another: Appellant
v.
New Delhi Municipal Council and Another: Respondent
AIR 1998 SC 223
K. Ramaswamy, S. Saghirahmad, G.B. Pattanaik, JJ.
1. The admitted facts are that the builder impleaded as one of the respondents, after
obtaining the requisite sanction, built 8 floors (including ground floor) on November
22, 1984 as per the guidelines which permitted 150 F.A.R. with the height restriction
of 80 feet. The construction of the building known as "White House", came to be
made and the possession of the flats was delivered to the purchasers, the appellant
being one of them. At a later stage, it was found that the builder constructed the
building in violation of the Regulations. Consequently, the flats of the top four floors
were demolished. The demolition came to be challenged by way of the writ petition
in the High Court. The High Court dismissed the same. Thus this appeal is by special
leave.
2. Before we go into the controversy involved, it would be appropriate and

advantageous at this stage to refer and discuss the law of equity and its role in the
field of tort and equity.
3. In Hanbury & Martin's Modem Equity (14th Edn. - 1993) by Jill E. Martin, at page 3
it is stated, on the "General Principles of Equity" that "'equity' is a word with many
meanings. In a wide sense, it means that which is fair and just, moral and ethical; but
its legal meaning is much narrower." "Developed system of law has ever been
assisted by the introduction of a discretionary power to do justice in particular cases
where the strict rules of law cause hardship. Rules formulated to deal with particular
situations may subsequently work unfairly as society develops. Equity is the body of
rules which evolved to mitigate the severity of the rules of the common law."
Principles of justice and conscience are the basis of equity jurisdiction, but it must not
be thought that the contrast between law and equity is one between a system of strict
rules and one of broad discretion.
4. "Hudson's Building and Engineering Contracts (10th End.) by I.N. Duncan and
Wallace defines "building contract" as "an agreement under which a person
undertakes for reward to carry out, for another person, variously referred to as the
buildings owner or employer, works of a building or civil engineering character." In
the typical case, the work will be carried out upon land of the employer or building
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K.R.Mangalam University Law of Torts & Consumer Protection Act, 1986
owner, though in some special cases obligation to build may arise by contract where
that is not so, e.g., under building leases and contracts for the sale of land with a
house in the course of erection upon it. M.A. Sujan in "Law Relating to Building
Contracts" (2nd Edn.) quotes in para 3.3 Keating's definition of "building contracts"
according to which they include "any contract where one person agrees for valuable
consideration to carryout building or engineering works for another". He also quotes
Gajria's definition thus: "Building contract is defined as contract containing an exact
and minute description of the terms, account or remuneration of particulars for the
construction of a building". He further quotes thus: "Abuilding or engineering
contract is a legally binding agreement which has for its subject matter or principle
subject matter, the conditions intended to govern the erection of a proposed building
or the execution of works of engineering construction; and by which one person or
body of persons, undertakes, for a consideration, to erect or construct for another,
such works in conformity with the design of the proposed building to be erected by
one party on the land of the other and for the latter's benefit.
5. The terms 'contract' and 'agreement' when applied to building and engineering works,
have the same legal significance. But in practice, the terms 'building contract' and
'engineering contracts' are used in reference to works to be done for the use and
benefit of the land-owner, whereas a 'building agreement' is one whereby a lease or
other interest in the land is to be immediately granted to the contractor upon
completion of the building". Hudson at page 68 has stated that "wherever a contractor
is liable to a third person in this way, the building owner may also be vicariously
liable for the builder's acts or omissions, or, perhaps more correctly, will be a joint
tort-feasor. At page 579, under Section 2 dealing with Damages", he has stated that
"Under the complicated provisions of many building contracts the possible breaches
of contract by the contractor are numerous, and in each case the general principles set
out above must be applied in order to determine what, if any, damage is recoverable
for the breach in question. Typical breaches of the less common kind are, for
example, unauthorized sub-contracting, failure to insure as required, failure to give
notices, payment of unauthorized wages, and so on, which, depending on the
particular circumstances of the case, may or may not cause damage.
6. The commonest breaches causing substantial damage, and hence giving rise to
litigation, may be broadly divided into three categories, namely, those involving
abandonment or total failure to complete, those involving delay incompletion, and
those involving defective work. At page 580, the learned author has stated thus: "In
the case of defective work it should also be remembered that the final certificate may,
in the absence of an over-riding arbitration clause, bind the employer and prevent him
from alleging defective work altogether, and many contracts where no architect is
used, particularly private-developer sales (or sales of houses "in the course of
erection") may, depending on their terms, extinguish liability upon the later
conveyance under the caveat emptor principle". The principle has been dealt with at
page 289 stating as under: "The courts in their desire to escape from the rule of fitness
of habitation upon the purchase of a new house from a builder if the house is
completed at the time of the contract of sale, have been able to justify a refusal to
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apply the rule of caveat emptor by finding that at the time of sale the house was "in
the course of erection", and frequently apply the implied term as to habitability to
houses which are virtually completed at the time of sale. Furthermore, while it might
at first sight seem logical that the warranty of fitness should extend only to the work
uncompleted at the time of sale, this difficulty has been brushed aside, and, once a
building has been held to be in the course of erection, the warranty has been applied
to the whole building including work already done.
7. In McGregor on Damages, the Common Law Library No. 9 (14th Edn.) by Harvey
McGregor at page 683, it is stated that " Physical damage to or destruction of goods
may result from a large variety of very different torts of which trespass is the oldest
and negligence the most prolific, and which includes torts involving, or bordering
upon strict liability, as where the damage or destruction results from nuisance, by
reason of dangerous premises, goods or animals in the defendants control, from his
non-natural user of land under the rule in Rylands v. Fletcher(1868) L.R. 3 H.L. 330,
or from breach of statutory obligation giving rise to an action in tort. Not only are
most of the cases actions of negligence but most of those in which questions of the
measure of damages have been worked out have involved damage to or destruction of
ships generally by collision. The principles expounded in these cases are however of
universal application. "There is no special measure of damages applicable to a ship,"
said Pickford L.J. in The Kingsway (1918) p. 344, 356 (C.A.), different from the
measure of damages applicable to any other chattel. The nature of the thing damaged
may give rise to more difficult questions in the assessment of damages but it does not
change the assessment in any way". The normal measure of damages, stated in para
998 at page 684, is the amount by which the value of the goods damaged has been
diminished.
8. In the Modern Law of Tort by KM. Stanton (Sweet & Maxwell) (1995 Edn.) at pages
4-5, it is stated that "Contract and tort are the two main areas of the English law of
obligations. Contractual duties are based on an agreement whereby one person is to
provide benefits for another in return for some form of benefit, whether in money or
otherwise. Tort duties are imposed by operation of law and may be owed to a wide
range of persons who may be affected by action. A question which is commonly
asked in this context is whether a plaintiff who is in a contractual relationship with
the defendant can invoke tort in order to benefit his case when there has been a breach
of contract. There are a number of reasons relating to damages and limitation of
actions which may make it advantageous to switch a claim out of contract and into
tort". At page 9, it is stated under the heading "Breach of trust and other equitable
obligations" that "Remedies for breach of trust or other equitable obligations, even
though they may result in purely financial awards, are excluded from the law of tort.
The reason for this is basically historical; tort derives from the work of common law
courts whereas the Court of Chancery, developed completely separate equitable
principles." At page 334, it is stated by the author that the issue of the recovery of
pure economic loss also raises fundamental questions concerning the relationship
between contract and tort and, in particular, the forms of loss which are recoverable in
the different kinds of action. The central question in this debate is whether the tort of
3
negligence has the capacity to provide a remedy for defective quality in the case of
buildings and chattels. The traditional view is that it cannot because defects affecting
the quality of an item can only give rise to a negligence action in tort if persons have
been injured or other property damaged thereby. Damages can only be claimed in the
tort of negligence for losses inflicted on the person or other property and not for
defects affecting the item itself."
9. In "Winfield and Jolowicz on Tort" (14th - 1994 Edn.) by W.V.H. Rogers, at page 4,
it is stated under the "Definition of tortious liability" that" Tortious liability arises
from the breach of a duty primarily fixed by law; this duty is towards persons
generally and its breach is redressable by an action for unliquidated damages". It must
also be emphasized that the number of cases in which it will be essential to classify
the plaintiffs claim as tort, contract, trust etc., will be comparatively small. A cause of
action in modern law is merely a factual situation the existence of which enables the
plaintiff to obtain a remedy from the court and he is not required to head his statement
of claim with a description of the branch of the law on which here lies, still less with
a description of a particular category (e.g., negligence, trespass, sale) within that
branch. But statutes and rules of procedure sometimes distinguish between, say,
contract and tort with reference to matters such as limitation of actions, service of
process, jurisdiction and costs and the court cannot then avoid the task of
classification. On "contract and tort", it is stated at page 5 that "(I)t is unlikely that
any legal system can ever cut loose from general conceptual classifications such as
"contract" and "tort" but the student will quickly come to recognize that the boundary
must sometimes be crossed in the solution of a problem. It has long been trite law that
a defendant may be liable on the same facts in contract to A and in tort to B
(notwithstanding privity of contract); it is also clearly established (though with
qualifications the boundaries of which are rather uncertain) that there may be
concurrent contractual and tortious liability to the same plaintiff, though he may not
of course, recover damages twice over. Winfield, therefore, considered that tortious
liability could for this reason be distinguished from contractual liability and from
liability on bailment, neither of which can exist independently of the parties' or at
least of the defendant's agreement or consent. The liability of the occupier of
premises to his visitor, for example, which is now governed by the Occupiers'
Liability Act, 1957, is based upon breach of a duty of care owned by the occupier to
persons whom he has permitted to enter upon his premises. The duty owned to
trespassers, i.e., persons who enter without his consent, is not the same.
10. In the "Words and Phrases" (Permanent Edition), Vol. 5A, at page 309 "breach of
trust" is stated to be, "violation by trustee of any duty which as trustee he owns to
beneficiary". The disclosure by an employee of trade secrets and other confidential
information obtained by him in the course of his employment is a "breach of trust". A
"breach of trust" is a violation by the trustee of any duty which as trustee he owes to
the beneficiary. In Jarvis v. Moy. Davies, Smith, Vanbdervell & Co. (1936) 1 QB
399, the facts were that the plaintiff sued the defendants, a firm of stockbrokers,
claiming damages for breach of his instructions as to the purchase of certain shares
whereby he sustained loss. At the trial, judgment was given in favor of the plaintiff
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and it was held by Greer L.J. that where the breach of duty complained of arises out
of the obligations undertaken by a contract, the action is founded on contract; but
where that which is complained of arises out of a liability independently of the
personal obligation undertaken by a contract, an action brought in respect of this is
founded on tort and this is so even though there may be a contract between the
parties.
11. In this backdrop, it would be seen that in the tort liability arising out of contract,
equity steps in and tort takes over and imposes liability upon the defendant for
unqualified damages for the breach of the duty owed by the defendant to the plaintiff.
Equity steps in and relieves the hardships of the Plaintiff in a common law action for
damages and enjoins upon the defendant to make the damages suffered by the
plaintiff on account of the negligence in the case of the duties or breach of the
obligation undertaken or failure to truthfully inform the warranty of title and other
allied circumstances. In this case, it is found that four floors were constructed without
any authorization and came to be demolished by the New Delhi Municipal Council. It
does not appear that the owners of the flats were informed of the defective or illegal
construction and they were not given notice of caveat emptor. Resultantly, they are
put to loss of lacks of rupees they have invested and given as values of the flats to the
builder- respondent.
12. The question arising for consideration is: whether the appellants should be re-
compensated for the loss suffered by them? The High Court in the impugned
judgment has directed the return of the amount plus the escalation charges. We are
informed that the escalated price as on the date is around 1.5 crores per flat. In this
situation, taking into consideration the totality of the facts and circumstances, we
think that the builder-respondent should pay Rs. 60 lacs including the amount paid by
the allotted, within a period of six months from today. In case there is any difficulty
in making the said payment within the said period to each of the flat owners, the
builder-respondent is given another six months peremptorily for which, however, the
builder-respondent will have to pay interest @ 21 per cent per annum on the said
amount from the expiry of first six months till the date of payment.
13. The builder impleaded, suo motu, as one of the respondents, is also directed to obtain
the certified copy of the title deeds and secure the loan, if he so desires. After the
payment is so made, the appellants are directed to deliver the original title deeds
taken custody of on March1, 1994. It appears that with regard to the payment of Rs. 1
crore as the price of the flats, property and money are kept under attachment. The
attachment will continue till the said amount is paid over.
The appeal is accordingly disposed of.
5
ASHBY v. WHITE
Ashby: Appellant
v.
White: Respondent
(1703) 92 ER 126.
Holt Chief Justice
1. This case was a foundational case in UK constitutional law and English tort law of 1701.
It is related with the right to vote and misfeasance of a public officer. The principle laid
down was that a man who has a right to vote at an election for Members of Parliament
may maintain an action against the returning officer for refusing to admit his vote.
2. Brief facts of the case were that Pliantiff, Mr Mathew Ashby was prevented from voting
for the British Parliament at an election by the misfeasance of a constable, Mr William
White, on the apparent pretext that he was neither a settled inhabitant of Borough nor he
ever contributed to church or poor. However, later it was found that the candidate in
whose favour the plaintiff wanted to vote already won the election and no harm was
caused to the plaintiff. As a consequence, plaintiff brought a legal action against the
defendant for unlawfully restricting him from casting vote and therefore, claimed for
substantial damages. On the other hand, defendants contention was that he shall not be
liable to pay damages since,the plaintiff had suffered no loss due to his candidate
winning the elections.
3. Gould Justice raised four grounds for it to be not maintainable: Firstly, because the
defendants being judges of the thing, and acted herein as judges: secondly, because it
being a Parliamentary matter, with which judges have nothing to do: thirdly, the
plaintiffs privilege of voting is not a matter of property or profit, so that the hindrance of
it was merely damnum sine injuria: fourthly, it related to the public, and a popular
offence.
4. As to the first, the Kings writ constitutes the defendant a judge in this case, and gives
him power to allow or disallow the plaintiffs vote. For this reason no action lies against a
sheriff for taking insufficient bail, because he is the judge of their sufficiency. No action
lies against a man for what he does as a judge. Secondly, this is a Parliamentary matter,
and it is for the Parliament to judge whether the plaintiff had a right of electing or not;
for it may be a dispute, whether the right of election be in a select number, or in the
populace; and this is proper for the Parliament to determine, and not for the judges ; and
if they should take upon us to determine, that he has a right to vote, and the Parliament be
of opinion that he has none, an inconvenience would follow from contrary judgments.
Thirdly it is not any matter of profit, either in praesenti or in futuro. To raise an action
upon the case, both damage and injury must concur. If a man forge a bond in anothers
name, no action upon the case lies, till the bond be put in suit against the party: so here, it
may be this refusal of the plaintiffs vote may be no injury to him, according as the
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Parliament shall decide the matter; for they may adjudge, that he had no right to vote,
whereby it will appear, the plaintiff was mistaken in his opinion as to his right of election,
and consequently has sustained no injury by the defendants denying to take his
vote.Fourthly , it is a matter which relates to the public, and is a kind of popular offence,
and therefore no action is given to the party; for by the same reason one man may bring
an action, a hundred may, and so actions infinite for one default; which the law will not
allow.
5. But it may equally be argued, that by the law of England every one who suffers a wrong
has a remedy but if we agree with the above contentions that means the privilege is lost,
and which shall imply that the plaintiff have no remedy? The answer is that restraining a
person from casting his vote in an election is not an injury, properly speaking; it is not
damnum. The reason for the same is that the plaintiff does not lose his privilege by this
refusal, for when the matter comes before the committee of elections, the plaintiffs vote
will be allowed as a good vote; and so in an action upon the case by one of the candidates
for a false return, this tender of his vote by the plaintiff shall be allowed as much as if it
had been given actually and received. And if this refusal of the plaintiffs vote be an
injury, it is of so small and little consideration in the law that no action will lie for it; it is
one of those things within the maxim, de minimis non curat lex.
6. Thus, this action on the case is a proper action. Although Justice Powell opined that an
action upon the issue is not maintainable, because there is no hurt or damage to the
plaintiff; but surely every injury imports a damage, though it does not cost the party one
farthing, and it is impossible to prove the contrary; for a damage is not merely pecuniary,
but an injury imports a damage, when a man is thereby hindred of his right. The reason
for upholding the liability of the defendant may be well illustrated such as in an action
for slanderous words, though a man does not lose a penny by reason of the speaking
them, yet he shall have an action. Similarly, a man shall have an action against another
for riding over his ground, though it do him no damage; for it is an invasion of his
property, and the other has no right to come there. And in these cases the action is
brought vi et armis. But for invasion of anothers franchise, trespass vi et armis does not
lie, but an action of trespass on the case; as where a man has retorna brevium, he shall
have an action against any one who enters and invades his franchise, though he lose
nothing by it.
7. So here in the principal case, the plaintiff is obstructed of his right, and shall therefore
have his action. And it is no objection to say, that it will occasion multiplicity of actions;
for if men will multiply injuries, actions must be multiplied too; for every man that is
injured ought to have his recompence. Suppose the defendant beaten forty or fifty men,
the damage done to each one is peculiar to himself, and he shall have his action. So if
many persons receive a private injury by a public nuisance, every one shall have his
action, as is agreed in Williams case , 5 Co. 73 a. and Westbury and Powell , Co. Lit. 56
a. Indeed where many men are offended by one particular act, there they must proceed by
way of indictment, and not of action; for in that case the law will not multiply actions.
7
BHIM SINGH, MLA v. STATE OF JAMMU AND KASHMIR

AND ORS.
Bhim Singh: Appellant
v.
State of Jammu & Kashmir: Respondent
AIR 1986 SC 494
O. Chinnappa Reddy, J. And V. Khalid,J

1. This case has enormous jurisprudential implications regarding two interesting
questions.The first was the hierarchical relationship between the State and citizen. The
second interesting question was that whether monetary compensation is a suitable remedy
for a victim of State oppression.
2. The brief facts of the case were that a member of the Legislative Assembly of the State
of Jammu and Kashmir , Mr Bhim Singh was arrested by the police. The unfortunate Mr
Bhim Singh, who was so arrested, was not produced before the Magistrate for a period of
four days and further was kept hidden in an undisclosed location. The Supreme Court
eviscerated the State machinery for such flagrant violations of human rights. It is clear
that the depredations visited upon Mr Bhim Singh were a result of a particular session of
the Legislative Assembly where his vote may have been crucial. Since Mr Bhim Singh
had later been freed, the courts were left with a dilemma as to the remedy to be provided
to him. Thus, the Apex Court ordered the State to grant him compensation.
3. On August 17, 1985, the opening day of the Budget Session of the Legislative Assembly,
Shri Bhim Singh was suspended from the Assembly. He questioned the suspension in the
High Court of Jammu & Kashmir. The order of suspension was stayed by the High Court
on 9th September, 1985. On the same day an FIR under Section 153-A of the Indian Penal
Code was registered against Shri Bhim Singh at Police Station Pacca Danga, Jammu on
the allegation that he had delivered an inflammatory speech at a public meeting held near
Parade Ground, Jammu at 7.00 P.M. on September 8, 1985. The officer-in-charge of
Police Station Pacca Danga brought the matter to the notice of the Senior Superintendent
of Police, Jammu, who in turn informed the Deputy Inspector General of Police of
Jammu range. On 10th September, 1985, requisition for the arrest of Shri Bhim Singh was
sent to the Superintendent of Police, Anantnag through the Police Control Room,
Srinagar.
4. On the intervening night of 9th -10th September, 1985, he was proceeding from Jammu to
Srinagar. En route, at about 3.00 AM (on 10th), he was arrested at a place called Qazi
Kund about 70 kms. from Srinagar. He was taken away by the police. As it was not
known where he had been taken away and as the efforts to trace him proved futile, his
wife Smt. Jayamala, acting on his behalf, filed the present application for the issue of a
writ to direct the respondents to produce Shri Bhim Singh before the court, to declare his
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detention illegal and to set him at liberty. On 11th September, 1985 , Mr Bhim Singh
was prevented from attending the session of the Legislative Assembly of Jammu &
Kashmir. On September 13, 1985, the court directed notice to be issued to the
respondents including the Inspector General of Police to inform Smt. Jayamala to inform
about the place where Shri Bhim Singh has been kept in custody. On September 16,1985,
Shri Bhim Singh was released on bail by the learned Additional Sessions Judge of Jammu
before whom he was produced. Shri Bhim Singh filed a supplementary affidavit on 20th
September, 1985 stating more facts in addition to what had already been stated by Smt.
Jayamala in the petition. He categorically asserted that he was kept in police lock up from
10th to 14th and that he was produced before a Magistrate for the first time only on the
14th September, 1985.
5. When the complaint was of illegal arrest and detention, the least one would expect the
respondents to do is to file the affidavits of the officer who arrested the petitioner and the
officer who produced him before the Magistrate for the purpose of obtaining orders of
remand. Instead of filing their affdavits, several inconsequential affidavits were filed
perhaps only to confuse the issue. Shri Khajuria, the Inspector General of police filed a
lengthy affidavit containing statements of fact, most of which he could not be personally
aware. However, he chose to use careful language, as pointed out by the court, whenever
he referred to the remand of Shri Bhim Singh or his production before a Magistrate or
Sub Judge. The court was convinced that the failure to file the affidavits of the officers,
who arrested Shri Bhim Singh and the Sub-Inspector, incharge of Pacca Danga Police
Station was deliberate. They were to be kept back until there was dire necessity.
6. The court held that the Orders of remand were obtained from the Executive Magistrate
and the Sub Judge on the application of the police officers without the production of Shri
Bhim Singh before them. The manner in which the orders were obtained, i.e., at the
residence of the Magistrate and the Sub Judge after office hours, indicates the
surreptitious nature of the conduct of the police. The Executive Magistrate and the Sub-
judge do not at all seen to have been concerned that the person whom they were
remanding to custody had not been produced before them.The police officers, of course,
acted deliberately and mala fide and the Magistrate and the Sub Judge aided them either
by colluding with them or by their casual attitude. We do not have any doubt that Shri
Bhim Singh was not produced either before the Magistrate on 11th or before the Sub
Judge on 13th, though he has arrested in the early hours of the morning of 10th. There
certainly was a gross violation of Shri Bhim Singh's constitutional rights under Articles
21 and 22(2).
7. To our minds, it appears as if it was expected that Bhim Singh would proceed from
Jammu to Srinagar on the intervening night of 9-10 September, 1985 as there was a
meeting of the Assembly on 11th September and the police were alerted to arrest him
when sighted en route to Srinagar and take him back to prevent him from proceeding to
Srinagar to attend the the session of the Legislative Assembly.
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8. Custodians of law and order should not become depredators of civil liberties. Their duty
is to protect and not to abduct. However the two police officers, the one who arrested him
and the one who obtained the orders of remand, are but minions, in the lower rungs of the
ladder. We do not have the slightest doubt that the responsibility lies elsewhere and with
the higher echelons of the Government of Jammu and Kashmir but it is not possible to
say precisely where and with whom, on the material now before us. We have no doubt
that the constitutional rights of Shri Bhim Singh were violated with impunity.He should
be suitably and adequately compensated.That we have the right to award monetary
compensation by way of exemplary costs 01 otherwise is now established by the
decisions of this court in Rudul Sah v. State of Bihar and Anr. 1983 (3) SCR 508 and
Sebestian M. Hongray v. Union of India 1984 AIR SC 1026. When a person comes to us
with the complaint that he has been arrested and imprisoned with mischievous or
malicious intent and that his constitutional and legal rights were invaded, in appropriate
cases we have the jurisdiction to compensate the victim by awarding suitable monetary
compensation. We consider this an appropriate case. We direct the first respondent, the
State of Jammu and Kashmir to pay to Shri Bhim Singh a sum of Rs. 50,000/- within two
months from today.
10
TOWN AREA COMMITTEE AND ORS. v. PRABHU DAYAL

AND ANR.
Town Area Committee and Others: Appellant
v.
Prabhu Dayal and Another : Respondent
AIR 1975 All 132
Hari Swarup, J.
1. This is a defendant's appeal arising out of a suit for recovery of compensation for
damages suffered by the plaintiff by an act of defendants. Plaintiff's case was that he had
made constructions of 16 shoos on the old foundations of the building known as Garhi
and the defendant Town Area Committee act-ins through its Chairman and Vice-
Chairman, who are defendants 2 and 3 illegally demolished, these constructions. By this
demolition plaintiff suffered a loss of Rs. 1,000. According to him the notice under
Section 186 of the U. P. Municipalities Act was bad as it gave to the plaintiff only two
hours' time to demolish the constructions and not a reasonable time as contemplated in
Section 302 of the Act. It was also asserted that demolition after this notice was bad as
the notice was served at a time when the plaintiff was out of station. The action was said
to be mala fide.
2. The plea of the defendants was that the constructions had been made by the plaintiff
without giving the notice of intention to erect the building under Section 178 and without
obtaining the necessary sanction under Section 180 of the Act. It was denied that the
action was mala fide and it was asserted that the notice to demolish the constructions had
been given earlier on 18th December requiring the stoppage of further construction and
removal of constructions already made and when it was not complied with, an order had
been passed by the District Magistrate directing the Town Area Committee to take action
under Section 186. Thereafter another notice was given on December 21 which also was
not complied with and only then the building was demolished in accordance with law. On
these grounds it was alleged that the plaintiff was not entitled to claim any damages.
3. The trial Court held that the plaintiff had made constructions without complying with the
requirements of Section 178 and obtaining sanction as required under Section 180 of the
Act. It also found that the provisions had been made applicable to the town area and in
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the absence of necessary sanction the Board had a right to demolish the constructions.
The trial Court further found that notice had given reasonable time because the earlier
notice had not been complied with. On these findings the trial Court dismissed the suit.
4. Plaintiff went up in appeal. The appeal was allowed by the first appellate Court and suit
was decreed against defendants. Nos. 1 to 3. The claim was however, dismissed as
against defendant No, 4, i. e. the State of U. P. The first appellate Court held that the
Chairman and Vice-Chairman had acted with malicious intention in ordering the
demolition of the building. It held that the order of the District Magistrate could not
legalise the demolition because the notice had not given reasonable time to the plaintiff to
demolish the constructions. On the finding that the defendants' action was high handed
the lower appellate Court awarded plaintiff a decree for damages. Defendants Nos. 1, 2
and. 3 -have now come UD in appeal.
5. A preliminary objection has been, raised on behalf of the respondents to the effect that no
appeal lies. The contention is that as the damages claimed were to the extent of Rs.
1,000/- and the suit was one of the nature cognisable by the Court of Small Causes, no
second appeal would He in view of Section 102, Civil P. C, I am unable to agree with this
contention. Section 15 of the Provincial Small Cause Courts Act makes all suits
cognizable by the Court of Small Causes except those which are specified in the second
schedule. Clause 35 (j) of the second schedule is relevant for purposes of this case. It
exempts a suit for compensation "for illegal, improper or excessive distress, attachment
or search, or for trespass, committed in or damage caused by, the illegal or improper
execution of any distress, search or legal process". The present is a suit according to the
plaintiff, for compensation for damage caused by illegal execution of a legal process.
6. According to learned counsel in the present case as the legal process itself wag
challenged to be invalid this provision will not apply. According to him this exception
applies only to such cases where the process is legal but the execution alone is illegal.
This contention cannot be accepted as no such distinction can be read in Clause (j) of
exception 35 of the second schedule. It is not understandable that the legislature will
exclude a case where the process is legal and the execution alone is illegal from the
cognizance of a Court of Small Causes, but will let a case where both the process and the
execution are illegal cognizable by summary Court. The actual, damage in both such
cases is suffered not by the issue of the legal process, but only by its execution. The suit
in either case is of a similar nature and will be excluded from the cognizance of the Court
of Small Causes. In the present case the plaintiff had claimed compensation on the
allegation that the plaintiff had suffered damage because of illegal execution of the legal
process. Such a suit was not cognizable by the Court of Small Causes and it was rightly
12
instituted by the plaintiff in the Court of the Munsif. The second appeal will therefore lie.
The preliminary objection is overruled.
7. Coming to the merits of the case, it appears that the lower appellate Court has completely
misdirected itself. The claim was on the basis of damages caused to the plaintiff by an act
of the defendants. The plaintiff can get compensation only if he proves to have suffered
injury because of an illegal act of the defendant and not otherwise. Malice does not enter
the scene at all. A legal act, though motivated by malice, will not make the actor liable to
pay damages. This proposition finds support from Salmond's observations "So too a
landlord who serves a valid notice to quit cannot be held liable in tort because his motive
was the vindictive one of punishing the tenant for having given evidence against him in
other proceedings." (Salmond on the Law of Torts, Fifteenth Edition, p. 18)
........................ Merely because some officer has malice against a citizen who has
committed a wrong will not render the action of the authority invalid if it is otherwise in
accordance with law. Mere, malice cannot disentitle a person from taking recourse to law
for getting the wrong undone. It is, therefore, not necessary to investigate, whether the
action was motivated by malice or not.
8. Before the plaintiff can get any damages he must prove that he had suffered an injury.
Law does not take into account all harms suffered by a person which caused no legal
injury. Damage so done 13 called damnum sine injuria. Such a damage does not give the
sufferer any right to get compensation. The term 'injuria' is to be understood in its
original and proper sense of wrong (in jus. contrary to law Salmond on the Law of Torts,
p. 17). In the present case there is no doubt that the plaintiff was himself guilty of
committing the wrong. As found by the trial Court, the plaintiff had not given any notice
under Section 178 of the U. P. Municipalities Act and had not obtained the sanction
contemplated by Section 180. According to the finding of the trial Court the building
abuts a public street and prior notice and sanction were necessary. These findings have
not been reversed by the appellate Court. Section 185 of the Act says: "Whoever begins,
continues or completes the erection or re-erection of, or any material alteration in a
building or part of building or construction or enlargement of a well, without giving the
notice required by Section 178, or in contravention of the provisions of Section 180,
subsection (5) or, of any order of the Board refusing sanction or any written directions
made by the Board under Section 180 or any bye-law, shall be liable upon conviction to a
fine which may extend to one thousand rupees but which, in the absence of special and
adequate reasons to the contrary to be mentioned in the judgment of the Court, shall not
be less than two hundred and fifty rupees."
13
9. According to learned counsel for the plaintiff, the demolition was not done in accordance
with law as the notice did not give reasonable time, and hence the Municipal Board will
be liable to pay damages. The notice though of an earlier date, was served on the 18th
and it required demolition before the 18th. Of course such a notice could not be complied
with in its terms, but that would not authorise the plaintiff to maintain the constructions
illegally made. The plaintiff did not appear before the authority to show cause why the
building should not be demolished. Again after three days another notice was given and
the building was thereafter demolished. There was no objection made that the two hours'
time given in the notice of the 21st was insufficient. Had the plaintiff made a complaint
that he had suffered a loss because the demolition was done the same day and he would
not have suffered loss if greater time had been granted for demolishing the illegal
constructions that would have been a different matter. The case of the plaintiff, however,
was that he had a right to maintain the building and the action of Board was bad because
it was mala fide. In this plea the time factor ceases to be of any importance. The notice
cannot in these circumstances be said to be such as to make the consequential action
illegal.
10. There is also no merit in the contention of the learned counsel that the plaintiff had
suffered injuria by the act of the demolition of the building because he had a fundamental
right to hold and enjoy the property even though it was constructed without prior sanction
from the Municipal authorities. There is no right to enjoy property not legally obtained or
constructed. A person has been given by law a right to construct a building, but that right
is restricted by various enactments, one of which is the U. P. Municipalities Act. If a
person constructs a building illegally, the demolition of such building by the municipal
authorities would not amount to causing "injuria" to the owner of the property. No person
has the right to enjoy the fruits of an act which is an offence under law.
11. As the plaintiff has failed to prove that he had suffered injuria in the legal sense, he is not
entitled to set any compensation. The decree of the Court below cannot even though the
plaintiff may have suffered damages, be sustained. In the result, the appeal is allowed, the
decree of the lower appellate Court is set aside and that of the trial Court restored. In the
circumstances of the case parties will bear their own costs.
14
MAYOR OF BRADFORD CORPORATION v. PICKLES

Mayor of Bradford Corporation: Appellant
v.
Pickles: Respondent
[1895] AC 587
House of Lords: Lord Halsbury, Lord Watson, Lord Ashbourne and Lord Macnaghten
1. Tort Lawful act done with improper or malicious motive Use of property Diversion
of percolating water from neighbouring land.No use of property which would be legal if
due to a proper motive can become illegal because it is prompted by a motive which is
improper, selfish, or even malicious.
2. The action was brought by the appellants to restrain the respondent from making or
continuing a drift or tunnel in his lands situate near East Many Wells, in the parish of
Bradford, Yorkshire; whereby the waters of certain springs and under: ground streams,
known as "Many Wells," to which the appellants alleged they were entitled under certain
Acts of Parliament, might be diverted, drawn off, or diminished in quantity. The
appellants were authorised by the Bradford Corporation Waterworks Act, 1854, to
purchase the undertaking of the Bradford Waterworks Co, who had acquired the
exclusive right to springs and streams of water arising or flowing in and through farm
lands and grounds called Trooper Farm. The respondent was the owner of a farm
immediately adjoining Trooper Farm, and on higher ground. He had been advised that
large quantities of stone and other minerals on his farm could be profitably worked if the
land could be kept drained and cleared of water without the expense of pumping-engines.
The appellants alleged that the action which be took to effect this would result in
underground water being diverted from their land.
3. LORD HALSBURY:In this action the plaintiffs seek to restrain the defendant from doing
certain acts which they allege will interfere with the supply of water which they want,
and are incorporated to collect, for the purpose of better supplying the town of Bradford
NORTH, J, ordered the injunction to issue, but the Court of Appeal, consisting of LORD
HERSCHELL, and LINDLEY and AL SMITH, LJJ, reversed his judgment.
4. The facts that are material to the decision of this question seem to me to lie in a very
narrow compass The acts done, or sought to be done, by the defendant were all done
upon his own land, and the interference, whatever it is, with the flow of water is an
interference with water which is underground and not shown to be water flowing in any
defined stream, but is percolating water, which, but for such interference, would
undoubtedly reach the plaintiffs' works, and in that sense it does deprive them of the
water which they would otherwise get.
15
5. Apart from the consideration of the particular Act of Parliament incorporating the
plaintiffs, which requires separate treatment, the question whether the plaintiffs have a
right to the flow of such water appears to me to be covered by authority In Chasemore v
Richards (1) it became necessary for this House to decide whether an owner of land had a
right to sink a well upon his own premises, and thereby abstract the subterranean water
percolating through his own soil, which would otherwise, by the natural force of gravity,
have found its way into springs which fed the river Wandle, the flow of which the
plaintiff in that action had enjoyed for upwards of sixty years. The very question was then
determined by this House, and it was held that the landowner had a right to do what he
had done, whatever his object or purpose might be, and although the purpose might be
wholly unconnected with the enjoyment of his own estate It, therefore, appears to me
that, treating this question apart from s 49 of the Act of Parliament upon which the whole
question turns, it would be absolutely hopeless to contend that this case is not governed
by the authority of Chasemore v Richards (1).
6. LORD ASHBOURNE:To my mind the case is clear, and turns upon considerations
sufficiently simple, and far from obscure. The appellants have no case, unless they can
show that they are entitled to the flow of the water in question, and that the respondent
has no right to do what he is doing. Putting aside the statutes, the respondent's rights
cannot be seriously contested. The law stated by this House in Chasemore v Richards (1)
cannot be questioned. The respondent has acted within his legal rights throughout, and is
he to forfeit those legal rights, and be punished for their legal exercise, because certain
motives are imputed to him? If leis motives were the most generous and philanthropic in
the world, they would not avail him when his actions were illegal. If his motives are
selfish and mercenary, that is no reason why his rights should be confiscated when his
actions are legal. It is to be noted that the respondent or his predecessors in title never
parted with any of their legal rights; it is not suggested that the appellants, by agreement
or otherwise, ever acquired them; and no indication is given that there is an intention to
compensate the respondent for his legal rights; sought to be appropriated, or injuriously
affected, by the appellants. The appellants' contention on the construction of the statues
would practically confiscate the respondent's water rights I see nothing in the statutes to
interfere with, or prejudice, his legal rights. Very clear words would be required to
support the contention that legal rights have been swept away without compensation.
Waters that have come under the control of the appellants are Sully protected, but there is
not a word to hinder or cramp the action of the respondent unless he acts "illegally" or
proceeds in any manner "other than by law he may be legally entitled" I, therefore,
concur in the order proposed.
16
STANLEY v. POWELL
Stanley: Appellant
v.
Powell: Respondent
(1891) 1 QB 86
Denman, J
1. This was an action of trespass. The plaintiff was a beater, and lost an eye when out
shooting, by means of a pellet of shot Bred from the defendant's gun. At the trial, at
Maidstone Assizes, the jury found that the defendant had not been negligent; and the case
was reserved for further consideration.
2. The arguments took place in London; and his Lordship reserved judgment.In the
statement of claim the plaintiff alleged that the defendant had negligently, wrongfully,
and unskillfully fired his gun and wounded the plaintiff in the eye; and that the plaintiff in
consequence had lost his sight and suffered other damage. The defendant denied the
negligence alleged. After the evidence on both sides (which was conflicting) had been
heard, three following questions were left to the jury: i) Was plaintiff injured by a shot
from defendant's gun? ii). Was the defendant guilty of negligence in firing the charge, to
which that shot belonged, as he did? iii). Damages? The undisputed facts were that on
November 29, 1888, the defendant and several others were out to pheasant shooting in a
party; some being outside and others inside of a wood which the beaters were then
unavoidable, that is, by such a degree of care as an ordinary reasonable man would take;
though possibly avoidable by some still greater degree.
3. The plaintiff was employed by one Greenwood (who was the owner of the shooting, and
one of the party) to carry cartridges and any game that might be shot. Several beaters
were driving the game along a plantation of saplings towards an open drive. The plaintiff
stood just outside a gate which led into a field outside the plantation at the end of the
drive. The defendant was walking along in that field, a few yards from the hedge which
bounded the plantation. As he was going forward, a pheasant rose inside the plantation.
The defendant fired one barrel at the bird, and (according to the evidence for the
defendant) struck it with his first shot.
4. The case of Underwood v. Hewson (1 Strange, 596), decided in 1724, was relied on for
the plaintiff. The report is very short: "The defendant was uncocking a gun; and, the
plaintiff standing to see it, it went off and wounded him. At the trial, it was held that the
plaintiff might maintain trespass.Strange pro defendente." marginal note in Nolan's
edition of 1795 not necessarily Strange's own composition "is this," Trespass lies for an
accidental hurt," and in that edition there is a reference to Buller's N.P. On referring to
Buller (p. 16), where he is dealing with Weaver v. Ward, he writes as follows: " " So it is
17
no battery if one soldier hurts another in exercise. But, if bo plead it, lie must set forth the
circumstances so as to make it appear to the Court that it was inevitable and that he
committed no negligence to give occasion to the hurt; for it is not enough to say that he
did it casualiter etper infortunium et contra voluntatemmiam, for no man shall be excused
of a trespass unless it be justified entirely without his default. And therefore it has been
held that an action lay where the plaintiff, standing by to see the defendant unlock his
gun, was accidentally wounded; Strange, 596." On referring back to Weaver v. Ward I
can find nothing in the report to show that the Court held that in order to constitute a
defense in the case of a trespass it is necessary to show that the act was inevitable. If
inevitable, it would seem that that was a defense under the general issue, but a distinction
is drawn between an act which is inevitable and an act which is excusable; and what
Weaver v Ward really lays down is that "no man shall be excused of a trespass except it
may be judged utterly without his fault."
5. But the case on which most reliance was placed by plaintiff's counsel was Leame v. Bray
(3 East, 593). That was an action of trespass in which the plaintiff complained that the
defendant with force and arms drove and struck a chaise, which he was driving on the
highway, against the plaintiff's curricle, which plaintiff's servant was driving; by means
whereof the servant was thrown out and the horses ran away, and the plaintiff, who
jumped off to save his life, was injured. The facts stated in the report include a statement
that " the accident happened owing to the defendant, on a dark night, driving his carriage
on the wrong side of the road and the parties not being able to see each other; and if the
defendant had kept his right side there was ample room for the carriages to have passed
without injury." The report goes on to state: But it did not appear that blame was
imputable to the defendant in any other respect as to the manner of his driving. It was,
therefore, objected for the defendant that, the injury having happened from negligence
and not wilfully, the proper remedy was by an action on the case, and not of trespass vi et
armis. The plaintiff was thereupon nonsuited." On the argument of the rule to set aside
the nonsuit, the whole discussion turned upon the question whether the injury was
"immediate from defendant's act, or consequential only from it "; and in the result the
nonsuit was set aside. But it clearly appears from the report that there was evidence upon
which the jury might find negligence; and, indeed, the defendant's counsel assume it in
the very objection which prevailed with Lord Ellenborough when he nonsuited the
plaintiff. There is nothing in any of the judgments to show that if in that case a plea had
been pleaded denying any negligence, and the jury had found that the defendant was not
guilty of any negligence, but (for instance) that the accident happened wholly through the
darkness of the night rendering it impossible to distinguish one side of the road from the
other, and without negligence in either party, the Court would have held that the
defendant would have been liable (either in trespass or in case). All the cases to which I
have referred were before the Court of Exchequer in 1875 in the case of Holmes v.
Mather (L. R. 10 Ex. 261; supra, p. 1), and Mr. Baron Bramwell, in giving judgment,
dealt with them thus: " "As to the cases cited, most of them are really decisions on the
form of action, whether case or trespass. The result of them is this, and it is intelligible
enough. If the act that does an injury is an act of force vi et armis trespass is the proper
remedy (if there is any remedy) where the act is wrongful either as being wilful or as
being the result of negligence. Where the act is not wrongful for either of these reasons
18
no action is maintainable; though trespass would be the proper form of action if it were
wrongful." That is in accordance with a passage cited by Mr. Dickens from Bacon's
Abridgement (Trespass, 706), where the word "inevitable" does not find a place. " If the
circumstance which is specially pleaded in an action of trespass do not make the act
complained of lawful " (by which I understand justifiable even if purposely done to the
extent of purposely inflicting the injury " as, for instance, in a case of self-defense), " and
only make it excusable, it is proper to plead this in excuse, and it is in this case necessary
for the defendant to show not only that the act complained of was accidental " (by which
I understand, that the injury was unintentional), " but likewise that it was not owing to
neglect or want of due caution." In the present case, the plaintiff sued in respect of an
injury owing to defendant's negligence there was no pretense for saying that it was
intentional so far as any injury to the plaintiff was concerned and the jury negated this
negligence. It was argued that, nevertheless, inasmuch as the plaintiff was injured by a
shot from the defendant's gun, this was an injury owing to an act of force committed by
the defendant, and therefore an action would lie. I am of opinion that this is not so; and
that, against any statement of claim which the plaintiff could suggest, the defendant must
succeed, if the defendant pleaded the facts sworn to by the witnesses for the defendant in
this case, and the jury, believing those facts, found the verdict which they have found as
regards negligence. In other words, I am of opinion that, if the case is regarded as an
action on the case for an injury by negligence, the plaintiff has failed to establish that
which the very gist of such an action is. If, on the other hand, it is turned into an action of
trespass, and the defendant is supposed to have pleaded a plea denying negligence and
establishing that the injury was (in the sense above explained) "accidental," the verdict of
the jury is equally fatal to the action.
19
LLOYD v. GRACE, SMITH & CO.
Lloyd: Appellant
v.
Grace , Smith & Co.: Respondent
(1912) AC 716
Lord Atkinson, J
1. A principal is liable for the fraud of his agent acting within the scope of his authority,
whether the fraud is committed for the benefit of the principal or for the benefit of the
agent.
2. A widow, who owned two cottages and a sum of money secured on a mortgage, being
dissatisfied with the income derived therefrom, consulted a firm of solicitors and saw
their managing clerk, who conducted the conveyancing business of the firm without
supervision. Acting as the representative of the firm he induced her to give him
instructions to sell the cottages and to call in the mortgage money, and for that purpose to
give him her deeds (for which he gave a receipt in the firm's name); and also to sign two
documents, which were neither read over nor explained to her, and which she believed
she had to sign in order to effect the sale of the cottages. These documents were in fact a
conveyance to him of the cottages and a transfer to him of the mortgage. He then
dishonestly disposed of the property for his own benefit.
3. The appellant, who was a widow, owned two freehold cottages at Ellesmere Port, which
she had purchased in 1909 for 540l., and a sum of 450l. advanced to one Rushworth on a
mortgage of a house in Hartingdon Road, Liverpool.The respondents were a firm of
Liverpool solicitors of old standing and high repute, but the business was in fact carried
on by Frederick Smith (hereinafter referred to as the respondent) alone in the name of the
firm.The respondent's firm had acted as solicitors to the vendor on the sale of the
Ellesmere Port property and the appellant had become acquainted with the firm in the
course of this transaction.
4. On January 11, 1910, the appellant, being dissatisfied with the income derived from this
property, called at the office of the respondent's firm for the purpose of consulting them
on the matter. At the office she saw one Sandles, who was the respondent's conveyancing
manager and managing clerk. Sandles conducted the conveyancing work of the firm
without supervision. He had authority to arrange and negotiate sales of real property and
to carry them out, and also to receive deeds for safe custody. The respondent's time was
largely taken up in attending to his public duties as an alderman of the city of Liverpool,
and in his absence Sandles was left in charge of the office. Sandles was unknown to the
appellant, who believed him to be a member of the respondent's firm. At this interview
the appellant discussed with him both the Ellesmere Port property and the Liverpool
20
mortgage. He said that she was not getting enough for her money and asked her to call
again and bring with her the deeds relating to the Ellesmere Port property and to the
mortgage.On January 12 the appellant again called at the respondent's office, bringing the
deeds with her, and had another interview with Sandles. Acting on his advice she
instructed him to sell the cottages and call in the mortgage money. The reinvestment of
the money was then discussed, and Sandles suggested that the money should be invested
in certain companies in which he was interested and which he told her would produce 10
per cent., but nothing was settled as to that. The appellant left her deeds with Sandles,
who gave a receipt for them in his own name. In the course of this interview Sandles left
the room, taking the deeds with him. After an interval of twenty minutes he returned with
a clerk and produced two documents which he asked the appellant to sign. These
documents were not read over to the appellant and were not explained to her. She signed
them without reading them, believing that they were something she had to sign before
the sale could be proceeded with. These documents were in fact a conveyance by the
appellant to Sandles of the Ellesmere Port property at the price of 540l. and a transfer by
her to him of the mortgage on the Liverpool property in consideration of the sum of 450l.
5. On the following day, January 13, Sandles mortgaged the Ellesmere Port property to the
Union Credit Bank to secure a loan to himself of 378l. and interest, expressed in the
mortgage as 550l., and he also gave notice to Rushworth of the transfer to him of the
mortgage on the Liverpool property and called in the mortgage money.On January 14 the
appellant, who had been advised by a friend that she ought to get a receipt for the deeds
in the name of the firm, wrote to Sandles cancelling her instructions to sell the cottages
and to call in the mortgage.
6. On January 17 the appellant again saw Sandles at the office and told him she had changed
her mind as to the investment of her property and proposed to buy Corporation stock.
Sandles told her that that was not solicitors' work and she should consult a stockbroker.
He also told her that he had already called in the mortgage money and advised her to
leave her deeds with him. Pointing to a pile of deed boxes in the office he said "They will
be quite safe with us." The appellant then told him not to proceed with the sale of the
Ellesmere Port property and asked for a receipt in the firm's name for her deeds. Sandles
gave her a receipt for both sets of deeds, dated January 17, 1910, which he signed "Grace,
Smith & Co. C. W. S."
7. On March 12 Sandles wrote to the appellant enclosing a cheque for interest on the
Liverpool mortgage which he said Rushworth had sent him and stating that the mortgage
would be paid off in April. Rushworth did not in fact pay off the mortgage, but on April 5
Sandles transferred the mortgage to one Littler and received from him 450l., which he
applied in paying a private debt of his own. On April 28 Sandles called on the appellant
and told her that the mortgage money would be paid the following week, and he gave her
a cheque of his own for 450l. dated May 3. This cheque was not presented and it would
not have been honoured. About the end of April the fraud by which Sandles had
deprived the appellant of her property was discovered by the respondent. On May 2, at an
interview which the appellant had with the respondent at his office, the respondent told
her that he had required Sandles to repay the money which he owed the Union Credit
21
Bank on the mortgage of the Ellesmere Port property, and that Sandles had promised to
send him 450l. but had only sent 250l., and he offered to lend her 200l. in order to
recover the deeds from the bank. The appellant then went with the respondent to the
bank, and the deeds were handed over to the respondent on payment of 450l., which
comprised the 250l. received from Sandles and 200l. lent by the respondent. The deeds
were retained by the respondent.
8. No imputation was cast upon the honour of the respondent. In these circumstances the
appellant commenced an action against the respondent's firm for delivery up of the deeds
of the Ellesmere Port property and for payment of the 450l. advanced on the Liverpool
mortgage. The appellant by her statement of claim alleged that she instructed the
respondents as her solicitors to sell her Ellesmere Port property and to call in the money
advanced on the Liverpool mortgage; that for the purpose of enabling the respondents to
effect the said sale and calling in she delivered to the respondents her deeds relating to
those properties; that the respondents had not sold the Ellesmere Port property and had
refused to return her deeds. She also alleged that the respondents had called in and
received the 450l. lent on mortgage. The respondents by their defence denied that the
appellant had ever instructed them as her solicitors, and they pleaded alternatively that
the appellant had conveyed the Ellesmere Port property and transferred the mortgage to
Sandles, and that they had paid off the mortgage granted by Sandles to the Union Credit
Bank, and had become entitled to the said freehold property and to the possession of the
deeds relating thereto; and that as to the mortgage money the appellant had ceased to
have any interest in it when the mortgage was transferred by Sandles to Littler. The
appellant in her reply denied having executed the indentures of conveyance and transfer
to Sandles, and alleged alternatively that she was induced to execute the said indentures
by the fraud of Sandles acting in the course of his employment and within the scope of
his authority as managing clerk of the respondents, and that he fraudulently stated to the
appellant that her execution of the said indentures was necessary and usual to enable the
respondents to sell the Ellesmere Port property and to call in the mortgage money.
9. It was agreed between the parties at the trial that any supplementary fin lings of fact
which it became necessary to decide should be made by the judge. In accordance with
this agreement, Scrutton J. found as facts that it was within the scope of Sandles'
employment to advise clients who came to the firm to sell property as to the best legal
way to do it and the necessary documents to execute; that the appellant did rely on the
representations of Sandles, professing to act on behalf of the firm, that the documents in
question were necessary to facilitate and carry out the sale of the land to her; that she did
not know she was signing conveyances to Sandles outside the scope of his authority, and
that she was justified in relying on the representations of Sandles without reading and
trying to understand the documents tendered to her, but that she knew she was signing
something affecting her estate.
10. On these facts Scrutton J. gave judgment for the appellant for the return of the deeds of
the Ellesmere Port property and for the sum of 450l. in respect of the claim relating to the
mortgage. In the opinion of the learned judge, where a servant acted within his apparent
authority but for his own benefit the master was liable for his acts whether in contract or
22
tort. As he read the rule of law laid down by Willes J. in Barwick v. English Joint Stock
Bank (1) it did not mean that, in order to make the master liable, it was essential that the
servant, though acting in the apparent course of his employment, should act for his
master's benefit, and he dissented from the dictum of Lord Davey in Ruben v. Great
Fingall Consolidated. (2) With regard to the answer of the jury to question 6 (a) he held
that there was no evidence to support it, and he accordingly disregarded that answer.
11. 1912. Feb. 27, 29. Tobin, K.C., and J. A. Johnston, for the appellant. The principal is
liable, whether the action be founded on contract or tort, for the act of his agent done
within the scope of his authority, and whether the act be careful or negligent, honest or
fraudulent.
12. This is established as regards contracts by Bryant, Powis & Bryant, Ld. v. Quebec Bank
(1) and Hambro v. Burnand(2), and as regards torts by Thompson v. Bell (3), Swire v.
Francis(4), and Trott v. National Discount Co. (5) Bowstead on Agency, 4th ed., p. 264,
art. 80, sums up the appellant's argument. Willes J. in Barwick v. English Joint Stock
Bank (6) does not say that a principal will not be liable for an act done by his agent
within the scope of his authority, unless the act is done for the benefit of his principal.
The sole question is whether the act is within the scope of the agent's authority. The
appellant's deeds having got lawfully into the possession of the solicitors, the fraud of
their agent in stealing them is no answer to the action. Further, the documents which the
appellant was induced to sign, not knowing what they were, are not her deeds.
13. Greer, K.C., and Cuthbert Smith, for the respondents. This is a claim for the return of
goods bailed and alternatively for false representation. As regards the first claim, where
goods are deposited with a person for safe custody, he is not liable if his servant
afterwards converts the goods to his own use: Cheshire v. Bailey (7); Jobson v.
Palmer(8); Giblin v. McMullen.(9) There is no authority for the proposition that a
solicitor receiving the deeds of a client for safe custody is under any greater liability than
a banker, who in the last cited case was held to be not responsible. His only duty is that of
an ordinary bailee. As regards the second claim, where a tort - whether it be false
representation, trespass, conversion, or any other wrongful act - is committed by a
servant, the master is not responsible if the object in committing the tort is the servant's
own benefit and not the benefit of the master: Barwick v. English Joint Stock Bank (6);
British Mutual Banking Co. v. Charnwood Forest Ry. Co. (10); Thorne v. Heard (11);
Ruben v. Great Fingall Consolidated(12); Sanderson v. Collins. (13) Where an agent has
authority to contract and the contract is made, the motive of the agent in making the
contract is immaterial, and the principal is liable, for the reasons stated by Mathew L.J. in
Hambro v. Burnand (2), but that is not so in the case of a tort, and the moment that an
agent commits a voluntary wrongful act for his own benefit he ceases to be acting within
the scope of his authority.
14. The appellant, Mrs. Lloyd, had bought some property, and thus had come to know of the
defendant, a solicitor. She had doubts about having got her money's worth, and went to
the defendant's office to inquire. When there she saw one Sandles, the defendant's
managing clerk, and was induced by him to give him instructions to sell or realize this
23
property, and for that purpose to give him the deeds and to sign two documents which she
neither read nor knew the tenor of, but which put into Sandles' possession her interest
therein. She gave him the deeds as the defendant's representative. Having got them and
the signed documents, he dishonestly disposed of this lady's property and pocketed the
proceeds. That is the whole story as it is now either found or admitted because it was
incontestable.
15. It is clear to my mind, upon these simple facts, that the jury ought to have been directed,
if they believed them, to find for the plaintiff. The managing clerk was authorized to
receive deeds and carry through sales and conveyances, and to give notices on the
defendant's behalf. He was instructed by the plaintiff, as the representative of the
defendant's firm, - and she so treated him throughout - to realize her property. He took
advantage of the opportunity so afforded him as the defendant's representative to get her
to sign away all that she possessed and put the proceeds into his own pocket. In my
opinion there is an end of the case. It was a breach by the defendant's agent of a contract
made by him as defendant's agent to apply diligence and honesty in carrying through a
business within his delegated powers and entrusted to him in that capacity. It was also a
tortious act committed by the clerk in conducting business which he had a right to
conduct honestly, and was instructed to conduct, on behalf of his principal.
16. I have only to say, as to the authority of Barwick v. English Joint Stock Bank (2), that I
entirely agree in the opinion about to be delivered by Lord Macnaghten. If the agent
commits the fraud purporting to act in the course of business such as he was authorized,
or held out as authorized, to transact on account of his principal, then the latter may be
held liable for it. And if the whole judgment of Willes J. be looked at instead of one
sentence alone, he does not say otherwise.
17. Now it must be remembered that in 1867, when Barwick's Case (1) was decided, there
was some difference of judicial opinion on the question whether an innocent principal
was liable for the fraud of his agent, even when he had received the benefit of the fraud.
In Barwick's Case (1) the agent committed the alleged fraud, if he did commit it, for the
benefit of his principals. It may be that he was indirectly acting for his own benefit. He
may have wished to recommend himself to his principals, by astuteness and zeal in their
service, or he may have intended to make amends for over-confidence in an impecunious
customer; but the direct pecuniary benefit was the benefit of the principals. It must also
be remembered that in the then recent case of Udell v. Atherton (2), by an equal division
of the members of the Court, an innocent principal succeeded in retaining the benefit of a
fraud committed by his agent. Possibly that case in some measure turned, as Cornfoot v.
Fowke (3) is said to have turned, on a question of pleading, but certainly one learned
judge who was in favour of the defendant, though he held strongly that an innocent
principal was not liable in an action of deceit for the fraud of his agent, even though he
had profited by it, expressed an opinion that there was no form of action in which liability
for vicarious fraud could be established against an innocent principal.
18. It was, I think, in reference to the facts of the particular case under review, where the
fraud, if committed, must have been committed for the benefit of the principal, that
24
Willes J. expressed himself in the language which has been misunderstood. What Willes
J. said was this: "The general rule is, that the master is answerable for every such wrong
of the servant or agent as is committed in the course of the service and for the master's
benefit, though no express command or privity of the master be proved." To that
statement of the law no objection of any sort can be taken. But it is a very different
proposition to say that the master is not answerable for the wrong of the servant or agent,
committed in the course of the service, if it be not committed for the master's benefit.
Willes J. does not, I think, say anything of the kind.
19. The first important case in which the ruling in Barwick's Case (1) was discussed was the
case of Mackay v. Commercial Bank of New Brunswick. (2) In that case the Judicial
Committee reaffirmed the ruling of Willes J. There the fraud was committed for the
benefit of the principal. But it was argued by Mr. Benjamin, Q.C., that the appellants in
the Privy Council would be entitled to retain the verdict if they had sustained damage
from the fraudulent representation of an agent, made within the scope of his authority,
even though the principal had not profited thereby. The judgment was delivered by Sir
Montague Smith. He observed (1) that their Lordships regarded it as "settled law that a
principal is answerable where he has received a benefit from the fraud of his agent, acting
within the scope of his authority." He discussed at some length what meaning was to be
attached to the expression "the scope of the agent's authority." "There are," says Sir
Montague Smith, "some cases to be found apparently at variance as to the interpretation
and the adaptation to circumstances of this doctrine .... it may be generally assumed that,
in mercantile transactions, principals do not authorize their agents to act wrongfully, and
consequently frauds are beyond 'the scope of the agent's authority' in the narrowest sense
of which the expression admits. But so narrow a sense would have the effect of enabling
principals largely to avail themselves of the frauds of their agents, without suffering
losses or incurring liabilities on account of them, and would be opposed as much to
justice as to authority. A wider construction has been put upon the words. Principals have
been held liable for frauds when it has not been proved that they authorized the particular
fraud complained of or gave a general authority to commit frauds: at the same time, it is
not easy to define with precision the extent to which this liability has been carried." Then
Sir Montague Smith says "The best definition of it .... is to be found in the case of
Barwick v. English Joint Stock Bank" (2), and he quotes the words of Willes J., who,
after enumerating instances where the principle had been applied, proceeded as follows:
"In all these cases it may be said, as it was said here, that the master had not authorized
the act. It is true he has not authorized the particular act, but he has put the agent in his
place to do that class of acts, and he must be answerable for the manner in which that
agent has conducted himself in doing the business which it was the act of his master to
place him in."
20. At the conclusion of the judgment, in reference to Mr. Benjamin's argument, his Lordship
expresses himself as follows (1): "It is not necessary to determine whether or not the
plaintiffs could have retained their verdict if they had proved only that they had sustained
damage from the fraudulent representation of an agent of the defendants made within the
scope of his authority, without proof of the defendants having profited thereby."
25
21. That, my Lords, I think is the true principle. It is, I think, a mistake to qualify it by saying
that it only applies when the principal has profited by the fraud. I think, too, that the
expressions "acting within his authority," "acting in the course of his employment," and
the expression "acting within the scope of his agency" (which Story uses) as applied to an
agent, speaking broadly, mean one and the same thing. What is meant by those
expressions is not easy to define with exactitude. To the circumstances of a particular
case one may be more appropriate than the other. Whichever expression is used it must
be construed liberally, and probably, as Sir Montague Smith observed, the explanation
given by Willes J. is the best that can be given.
22. In the case of Udell v. Atherton (1) Wilde B., afterwards Lord Penzance, in his admirable
judgment makes the following observation: "It is said that a man who is himself innocent
cannot be sued for a deceit in which he took no part, and this whether the deceit was by
his agent or a stranger. To this, as a general proposition, I agree. All deceits and frauds
practised by persons who stand in the relation of agents, general or particular, do not fall
upon their principals. For, unless the fraud itself falls within the actual or the implied
authority of the agent, it is not necessarily the fraud of the principal." In the same case, in
a passage which was approved apparently by the Court in Mackay v. Commercial Bank
of New Brunswick (2), Martin B.(3) stated the question to be, "Was his" (the agent's)
"situation such as to bring the representation he made within the scope of his authority?"
In those passages the true principle is, I think, to be found.
23. The passage in the judgment of Blackburn J. as reported in McGowan & Co. v. Dyer (3)
is as follows: "In Story on Agency, the learned author states, in s. 452, the general rule
that the principal is liable to third persons in a civil suit 'for the frauds, deceits,
concealments, misrepresentations, torts, negligences, and other malfeasances or
misfeasances, and omissions of duty of his agent in the course of his employment,
although the principal did not authorise, or justify, or participate in, or indeed know of
such misconduct, or even if he forbade the acts, or disapproved of them.' He then
proceeds, in s. 456: 'But although the principal is thus liable for the torts and negligences
of his agent, yet we are to understand the doctrine with its just limitations, that the tort or
negligence occurs in the course of the agency. For the principal is not liable for the torts
or negligences of his agent in any matters beyond the scope of the agency, unless he has
expressly |authorised them to be done, or he has subsequently adopted them for his own
use and benefit.'
24. I may observe in passing that although Lord Bramwell held strongly the view that for the
fraud of an agent committed for the principal's benefit the principal is not answerable,
either in an action of deceit or in any other form of action, yet he seems to think that it
follows (as indeed it must follow logically) that if liable in that case the principal must be
liable in all cases. For he suggests in Weir v. Bell (4) that instead of imputing vicarious
fraud to the principal such cases as Barwick v. English Joint Stock Bank (1) might be
decided on the ground that "every person who authorises another to act for him in the
making of any contract, undertakes for the absence of fraud in that person in the
execution of the authority given, as much as he undertakes for its absence in himself
when he makes the contract."
26
MERSEY DOCKS AND HARBOUR BOARD v COGGINS AND

GRIFFITHS (LIVERPOOL) LTD
Mersey docks and Harbour Board: Appellant
v.
Coggins and Griffiths (Liverpool) Ltd.: Respondent
[1946] 2 All ER 345
Streatfield J
1. Coggins and Griffiths hired from the Dock Board a crane and driver who was engaged
and paid by the Board. A third party employed by a firm of forwarding agents was
injured by the negligence of the crane driver and obtained judgment against the Board.
The Board appealed.
2. In this case, the servant was exercising his own discretion as driver, a discretion vested in
him by his general employers, and the mistake he made had nothing to do with the hirers.
If, however, the hirers had intervened to give directions how to drive and the driver pro
hac vice had complied with them the hirers might have been liable, as joint tortfeasors.
3. The contract between the parties provided that the hirers of the crane and workman must
take all risks and the workman shall be the servant of the hirers. This contract does not
affect the rights of third parties.
4. The claimant for 10 or 12 years had been a valued customer of the Daimler Co. He was in
the habit of taking his Daimler car to their works and leaving it with them for servicing
and repairs. Before the War the Daimler Co drove the claimant to the nearest railway
station as a courtesy service in their own car with their own driver. During the War, their
servant drove the claimant in his own car to the station and would then drive the car back
to the works. On the way to the station an accident occurred by the negligence of the
servant, and the claimant and a third party were injured.
27
Although the burden of proof of transfer of a servant is not so heavy when the servant alone is
hired, as opposed to the man plus the machine, it remains a heavy burden. The burden of proof
was on the claimant to show that he had abandoned his right to control or had contracted himself
out of that right:
i. The Daimler Co. were in possession of the car as bailees;

ii. The claimant had no right to control the bailees' servant;
iii. The claimant was doing no more than receive courtesy service;
iv. The claimant was not in a position to exercise control.
The fact that the claimant could have ordered the driver to drive more carefully if he was driving
dangerously or more slowly if at an uncomfortable or dangerous speed would be no more than
the common prudence that a hirer would exercise towards a taxi driver, who is not the servant of
the fare. He could not have ordered the driver to stop and wait half an hour, or deviate and wait
while he visited a patient, or drive to a more distant place for his own purposes. If the Daimler
Co had a regulation limiting the driving of customer's cars to a speed of, say, 20mph and the
claimant had ordered the driver to drive faster to catch a train, the driver could have refused.
28
THE SECRETARY OF STATE FOR INDIA v. HARI BHANJI

AND ANR.
The Secretary of State for India: Appellant
v.
Hari Bhanji and Anr.: Respondent
(1882) ILR 5 Mad 273
C A Turner, M Ayyar, JJ
1. The respondents having purchased a quantity of salt at Bombay and paid excise on it at
the rate of Rupees 1-13-0 per maund, the rate leviable under the law there in force,
despatched it by sea to certain ports in this Presidency. While the salt was in transit, Act
XVIII of 1878 was passed and came into force. By that Act the import duty on salt was
raised to Rupees 2-8-0 per maund; but in virtue of a notification issued by the Governor-
General in Council under the authority of the Indian Tariff Act, 1875, importers were
allowed a deduction of the excise already paid, and consequently they were chargeable
only with the difference between the excise and the import duty.
2. On the landing of the salt in this Presidency, the Collector required the respondents to pay
the difference, 13 annas per maund, between the excise already paid and the import duty
leviable under the Act of 1877, and the respondents, having complied with the Collector's
requirements in order to obtain possession of the salt, instituted this suit to recover the
sums they had been compelled to pay. Among other pleas the appellant pleaded that the
Court had no jurisdiction to entertain the suit. On this plea judgment was given for the
respondents, on the other issues for the appellant. In dismissing the suit the learned Judge
directed that each party should bear his own costs and assigned, as the reason for the
order respecting costs that the respondents had succeeded on the issue as to jurisdiction.
3. On appeal objection is taken to the order on the ground that the issue as to jurisdiction
entailed no costs, which would not have been incurred if the issue had not been raised,
that the appellant having succeeded on the main issues was entitled to recover his costs
and that the Court had no jurisdiction to entertain the suit.
4. At the hearing the learned Advocate-General admitted that although the Government
considered the order as to costs erroneous in that it was at variance with the ordinary
practice of the Court, the object of the appeal was principally to obtain the judgment of a
Division Bench on the question of jurisdiction.
29
5. The contention that the Court had no jurisdiction was not rested on the nature of the
subject-matter of the suit as being a matter of revenue in which the Court was prohibited
from interference by the provisions of the Letters Patent of the Supreme Court. On that
point the decision of the majority of the Full Court in Collector of Sea Customs v. P.
Chithambaram I.L.R. 1 Mad. 89 of course binds the Division Bench. The learned
Advocate-General stated that the necessity for the further consideration of the judgment
of Mr. Justice Innes arose from the circumstance that it was in conflict with the opinion
of three learned Judges of the High Court of Calcutta, and therefore the Government of
Madras desired to ascertain the opinion of a larger number of the Judges of this Court. He
relied mainly on the judgment of the Calcutta Court and supported it by citing authorities
illustrating the rules that a sovereign cannot be sued in his own courts without his consent
and that he is not amenable to the jurisdiction of municipal courts in respect of acts of
state. The case of Nobin Chunder Dey v. The Secretary of State I.L.R. 1 Cal. 11 is
unquestionably an authority directly in point. The circumstances were as follows. As a
means of collecting the Excise Revenue, the Superintendent of Excise offered for sale by
public auction the right of retail sale of specified liquors and drugs. The plaintiff was the
highest bidder for licenses for five shops; his bids were recorded and he paid the deposit.
Shortly after he had laid in a stock of goods the Excise officers refused him passes and
compelled him in consequence to close his shops. Having sustained loss on the resale of
the goods and in other ways, he claimed compensation in damages or at least the return of
the deposit.
6. The claim was tried by Mr. Justice, now Sir John Phear, who held it could not be
sustained. Adverting to the rules that the Crown could not be sued in its own courts, and
that the servants of the Crown could not be made liable in respect of acts done by them
bond fide on the part of, and as the agents of the Crown, and that the remedy of a person
injured could only be sought by petition of right, the learned Judge said that "to some
extent the case is seemingly, though not essentially, different with regard to India."
Having pointed out that, while the Government was in the hands of the East India
Company, the Company never entirely lost its private or commercial character, and
alluded to the decisions on which it was held that the East India Company, though
invested with powers usually called sovereign, was not constituted thereby a sovereign,
the learned Judge referred to the Peninsula and Oriental Steam Navigation Company v.
The Secretary of State Bourke, pt. VII, 166 and to the distinction there drawn between
acts done by the Company in the exercise of what are usually termed sovereign powers
and acts done by the Company in the conduct of undertakings which might be carried on
by private individuals who had no such powers delegated to them, and he held that the
East India Company and the Secretary of State, as succeeding to the liability to suit under
which the Company lay, could be sued only for acts done in the conduct of undertakings
which might be carried on by private individuals without sovereign powers. Finding that
the matter involved in the contract and breach was "not in any decree an undertaking that
might be carried on by private individuals without sovereign powers," that 'the contract
was only part of the administrative contrivance and arrangement by which the
Government is accustomed to collect the excise duties, and the levying of the excise
duties and other portions of the public revenue certainly could not lawfully be done by
private persons not delegated by the Sovereign to do so," he held that the suit was a suit
30
against the Government itself in respect to an alleged contract made and for acts done in
the exercise of sovereign powers and was therefore not maintainable. On appeal, the
Chief Justice and' Mr. Justice MACPHERSON affirmed the decree, dismissing the suit
on similar grounds. In delivering the judgment of the Court the learned Chief Justice
observed: "The persons who are said to have been guilty of the acts and default of which
ho (the plaintiff) complains are the officers employed in that Department of the
Government service which relates to the imposition and collection of the excise duties.
The ground of the complaint is that these officers have been guilty of various broaches of
duty in not fulfilling obligations to the plaintiff which they were bound to fulfil in that
capacity. Now it is impossible to doubt for a moment that the laws which are made in this
or any other country for the taxation of the subject by the impositions of customs and
duties are laws which can only be made or enforced in the exercise of sovereign powers
properly so called and these sales at which the plaintiff purchased [277] the rights on
which he claims only constitute a portion of the machinery and arrangements by which
the imposition and collections of the excise duties are regulated in this country. His claim
is therefore clearly one of those which cannot be enforced against the Government of
India."
7. It is an acknowledged attribute of sovereignty and has been described as a rule of

universal law that a sovereign is not liable to suit in his own courts without his consent.
Consequently in England the form of procedure permitted to a subject who considers
himself aggrieved by an act of the Crown is by petition of right. When an order has been
passed that justice be done, and not before, the Courts are at liberty to inquire whether the
claim is of such a nature that it can be maintained and whether it is well founded.
8. On the assumption by the Crown of the direct government of British India it was
provided that persons should have the same suits and remedies against the Secretary of
State in Council as they had theretofore been entitled to maintain and pursue against the
Company. Consequently, the Secretary of State in Council cannot in this country claim
on behalf of the Crown the prerogative of immunity from suit. The Crown has consented
to submit its acts in this country to the extent we shall presently indicate to the
jurisdiction of the Municipal Courts. This point was allowed by Mr. Justice Phear, and
the learned Chief Justice and Mr. Justice Macpherson have not expressed any doubt
respecting it.
9. The second rule to which we have referred as having relation to the nature of the act
complained of is the rule that Municipal Courts have no jurisdiction to entertain claims
against the Government arising out of acts of state. What is the sense in which the term
"act of state" is to be understood in this rule? In one sense all acts done by the officers of
the Government in the exercise of powers committed to them for purposes of
administration and which cannot legally be done by private persons may be termed acts
of state.
10. In the conduct of the commercial operations of the Company, the occurrence of
actionable wrong, could hardly be altogether avoided, and it was obvious that no
character of sovereignty attached to such operations. But the decision in the case of
31
Nobin Chunder Dey goes beyond the decisions to which we have referred. It is apparent
that the learned Judges had in view the able judgment in the Peninsular and Oriental
Steam Navigation Company v. The Secretary of State; but whereas in that case after
noticing the distinction above mentioned, the Court held that exemption from suit could
not be claimed in respect of the latter class of acts and expressed no opinion that all acts
of the former class would enjoy such immunity, in Nobin Chunder Dey's case it has been
ruled that the liability of the Government or of its officers to suit is restricted to acts of
the latter class. It appears to us that this position cannot be maintained, and that the
decided cases show that in the class of acts which are competent to the Government and
not to any private person, a distinction taken is between those which lie outside the
province of Municipal law and those which fall within that law, and that it is of the
former only that in this country the Municipal Courts in British India cannot take
cognizance.
11. Acts done by the Government in the exercise of the sovereign powers of making peace
and war and of concluding treaties, obviously do not fall within the province of
Municipal law and although in the administration of domestic affairs, the Government
ordinarily exercises powers which are regulated by that law, yet there are cases in which
the supreme necessity of providing for the public safety compels the Government to acts
which do not pretend to justify themselves by any canon of Municipal law. For the
exercise of these powers the Government though irresponsible to the Courts is not wholly
without responsibility. Under the constitution of England it is more or less responsible to
Parliament through the responsible ministers of the Crown.
12. Acts thus done in the exercise of sovereign powers but which do not profess to be
justified by Municipal law are what we understand to be the acts of state of which
Municipal Courts are not authorized to take cognizance.
13. It will be observed that the judgment of the Court did not proceed on the ground that the
injury was the result of an act which could only be done by the sovereign power or by
those to whom the sovereign had delegated his powers, but on the ground that the act was
of a character that did not fall within the purview of Municipal law, an act which Courts
charged with the administration of Municipal law could not appreciate and in respect of
which no jurisdiction was committed to them. The ground of decision was the same in the
earlier case of the Nabob of the Carnatic v. East India Company 4 Brown's Chancery
Cases 198; 2 Vesey jr., 59). Lord Commissioner Eyre in dismissing the bill said:It is a
case of mutual treaty between persons acting in that instance as states independent of
each other, and the circumstance that the East India Company are mere servants in
relation to this country has nothing to do with it. The treaty was entered into with them
not as subjects, but as a neighbouring independent state, and is the same as if it were
entered into between two sovereigns: it consequently is not the subject of private
Municipal jurisdiction.
14. The Tanjore case (7 M.I.A., 476) is at the same time an authority, for the position that
where the act which is the ground of complaint is an act which professes to be done under
the sanction of Municipal law and in the exercise of powers conferred by that law, the
32
circumstance that it is an act done by the sovereign power or by the deputy of that power
does not oust the jurisdiction of the Civil Courts. That the parties to the act then in
question could claim such protection as was afforded by the status of sovereignty was not
disputed, and the question on which the decision turned was, as will be seen from the
passages we have quoted, whether the act affected to justify itself on grounds of
Municipal law or whether it was in whole or in part a possession taken by the Crown
under colour of legal title, and in the latter case the committee determined that the
defence of absence of jurisdiction had no foundation.
15. In Forester v. The Secretary of State (Sutherland's P. C. Judgments, Vol. II, 628, S.C.
Indian Appeals 1872, 1873, p. 55) the plaintiff claimed title from the Begam Sumroo. At
the time the East India Company acquired the Doab and territories on the west of the
Jumna, this lady held a jaghir in the Doab on jaidad tenure, i. e., subject to the obligation
of maintaining a body of troops for the service of the sovereign. Practically the whole
administration of the territory included in the jaghir whether civil or criminal was vested
in the Begam who exercised a sort of delegated sovereignty therein; the Regulation Law
was not introduced till after the acts of which the plaintiff complained. On the death of
the Begam, the East India Company resumed the jaghir and seized the arms and military
stores. The plaintiff sued to recover the estate and compensation for the seizure of arms,
&c. It was pleaded that the Begam was an independent or quasi independent sovereign,
and that the resumption and seizure were acts of state of which the propriety and validity
were not cognizable by any municipal court. The Privy Council having found that the
Begam was not a sovereign princess overruled the plea. Their Lordships adverting to the
Tanjore case observed: "The act of Government in this case was not the seizure by
arbitrary power of territories which up to that time had belonged to another sovereign
state; it was the resumption of lands previously held from the Government under a
particular tenure upon the alleged determination of that tenure. The possession was taken
under colour of a legal title, that title being the undoubted right of the sovereign power to
resume and retain [283] or assess to the public revenue all lands within its territories upon
the determination of the tenure under which they may have been exceptionally held rent-
free. If by means of the continuance of that tenure or for other cause a right be claimed in
derogation of the title of the Government that claim like any other arising between the
Government and its subjects would prima facie be cognizable by the municipal courts of
India." Although the plaintiff failed to recover the estate because he could not prove a
heritable title, he succeeded in the "Arms Suit." (Sutherland's P.O. Judgments Vol. II p.
639).
16. If the decision on which the Government relies is correct, then it was obviously
unnecessary for the Privy Council in Forester's case to have inquired into the title of the
Begam, for the resumption of her jaghir was an act which could under no circumstances
have been legally done by a private person--it was an act of the Government done in the
exercise of administrative powers, but because it professed to be done under the sanction
of municipal law it was examinable by the municipal courts.The cases we have cited
appear to us to afford a sufficiently clear indication of the sense in which the term ' act of
state' is to be understood in the rule which restricts the jurisdiction of civil courts. In the
33
case before us, the demand of which the respondents complained was levied by the
Collector acting as he believed under the authority of municipal law.
17. On the question of costs, we are unable to say that sufficient grounds were shown to
warrant a departure from the usual rule. The respondents had brought the appellant into
court without grounds, and the appellant. was justified in objecting to the jurisdiction by
the ruling which it has been our duty to examine. We must, therefore, allow the appeal
and vary the order by directing that the respondents do pay the appellant's costs in the
Court of First Instance, but as it is admitted the appeal would not have been brought
except to try the question of jurisdiction, we direct the appellant to bear his own costs of
this appeal.
34
KASTURI LAL RALIA RAM JAIN v. STATE OF U.P.

Kasturi Lal Ralia Ram Jain: Appellant
v.
State of U.P.: Respondent
AIR 1969 SC 1039
Gajendragadkar C.J.
1. The Old and archaic concept of Sovereign immunity that King can do no wrong still
haunts us, where the state claim immunity for its tortious acts and denies compensation to
the aggrieved party.
2. The doctrine of sovereign immunity is based on the Common Law principle borrowed
from the British Jurisprudence that the King commits no wrong and that he cannot be
guilty of personal negligence or misconduct, and as such cannot be responsible for the
negligence or misconduct of his servants. Another aspect of this doctrine was that it was
an attribute of sovereignty that a State cannot be sued in its own courts without its
consent. The point as to how far the State was liable in tort first directly arose in P. & O.
Steam Navigation Co. Vs. Secretary of State. This judgment laid down that the East India
Company had a two fold character:
(a) As a sovereign power and
(b) As a trading company.
3. The liability of the company could only extend to in respect of its commercial dealings
and not to the acts done by it in exercise of delegated sovereign power. As the damage
was done to the plaintiff in the exercise of non-sovereign function, i.e. the maintenance of
Dockyard which could be done by any private party without any delegation of sovereign
power and hence the government cannot escape liability and was held liable for the torts
committed by its employees.
4. The short question of law which arises in this appeal is whether the respondent, the State
of Uttar Pradesh, is liable to compensate the appellant, M/s. Kasturilal Ralia Ram Jain for
the loss caused to it by the negligence of the police officers employed by the respondent.
This question arises in this way. The appellant is a firm which deals in bullion and other
goods at Amritsar. It was duly registered under the Indian Partnership Act. Ralia Ram
was one of its partners. On the 20th September, 1947 Ralia Ram arrived at Meerut by the
Frontier Mail about midnight. His object in going to Meerut was to sell gold, silver and
35
other goods in the Meerut market. Whilst he was passing through the Chaupla Bazar with
this object, he was taken into custody by three police constables. His belongings were
then searched and he was taken to the Kotwali Police Station. He was detained in the
police lock-up there and his belongings which consisted of gold, weighing 103 tolas 6
mashas and 1 ratti, and silver weighing 2 maunds and 6 1/2 seers, were seized from him
and kept in police custody. On the 21st September, 1947 he was released on bail, and
some time thereafter the silver seized from him was returned to him. Ralia Ram then
made repeated demands for the return of the gold which had been seized from him, and
since he could not recover the gold from the police officers, he filed the present suit
against the respondent in which he claimed a decree that the gold seized from him should
either be returned to him, or in the alternative, its value should be ordered to be paid to
him. The alternative claim thus made by him consisted of Rs. 11,075-10-0 as the price of
the gold and Rs. 355 as interest by way of damages as well as future interest.
5. This claim was resisted by the respondent on several grounds. It was urged that the
respondent was not liable to return either the gold, or to pay its money value. The
respondent alleged that the gold in question had been taken into custody by one
Mohammad Amir, who was then the Head Constable, and it had been kept in the police
Malkhana under his charge. Mohd. Amir, however, misappropriated the gold and filed
away to Pakistan on the 17th October, 1947. He had also misappropriated some other
cash and articles deposited in the Malkhana before he left India. The respondent further
alleged that a case under section 409 of the Indian Penal Code as well as s. 29 of the
Police Act had been registered against Mohd. Amir, but nothing effective could be done
in respect of the said case because in spite of the best efforts made by the police
department, Mohd. Amir could not be apprehended. Alternatively, it was pleaded by the
respondent that this was not a case of negligence of the police officers, and that even if
negligence was held proved against the said police officers, the respondent State could
not be said to be liable for the loss resulting from such negligence.
6. On these pleadings, two substantial questions arose between the parties; one was whether
the police officers in question were guilty of negligence in the matter of taking care of the
gold which had been seized from Ralia Ram, and the second was whether the respondent
was liable to compensate the appellant for the loss caused to it by the negligence of the
public servants employed by the respondent. The trial Court found in favor of the
appellant on both these issues, and since the gold in question could not be ordered to be
returned to the appellant, a decree was passed in its favor for Rs. 11,430.
7. The respondent challenged the correctness of this decree by an appeal before the
Allahabad High Court and it was urged on its behalf that the trial Court was in error in
regard to both the findings recorded by it in favor of the appellant. These pleas have been
upheld by the High Court. It has found that no negligence had been established against
the police officers in question and that even if it was assumed that the police officers
were negligent and their negligence led to the loss of gold, which would not justify the
appellant's claim for a money decree against the respondent. The appellant then moved
for and obtained a certificate from the said High Court and it is with the said certificate
that it has come to this Court by an appeal. On behalf of the appellant, Mr. M. S. K. Sastri
36
has urged that the High Court was in error in both the findings recorded by it in favor of
the respondent. The first finding is one of fact and the second is one of law.
8. In dealing with the question of negligence, it is necessary to refer to the evidence adduced
in this case. The material facts leading to the seizure of gold are not in dispute. The only
question which calls for our decision on this part of the case is whether the loss of gold
can be legitimately attributed to the negligence of the police officers in charge of the
police station where the gold and silver had been kept in custody.
9. Thus considered, there can be no escape from the conclusion that the police officers were
negligent in dealing with Ralia Ram's property after it was seized from him. Not only was
the property not kept in safe custody in the treasury, but the manner in which it was dealt
with at the Malkhana shows gross negligence on the part of the police officers. A list of
articles seized does not appear to have been made and there is no evidence that they were
weighed either. Itis true that the respondent's case is that these goods were
misappropriated by Head Constable Mohd. Amir; but that would not assist the respondent
in contending that the manner in which the seized property was dealt with at the police
station did not show gross negligence. Therefore, we are satisfied that the trial Court was
right in coming to the conclusion that the loss suffered by the appellant by the fact that
the gold seized from Ralia Ram has not been returned to it, is based on the negligence of
the police officers employed by the respondent; and that raises the question of law which
we have set out at the commencement of our judgment.
10. This question essentially falls to be considered under Art. 300(1) of the Constitution. This
article reads thus :-"The Government of India may sue or be sued by the name of the
Union of India(UOI) and the Government of a State may sue or be sue or be sued by the
name of the State and may, subject to any provisions which may be made by Act of
Parliament or of the Legislature of such State enacted by virtue of powers conferred by
this Constitution, sue or be sued in relation to their respective affairs in the like cases as
the Dominion of India and the corresponding Provinces or the corresponding Indian
States might have sued or been sued if this Constitution has not been enacted."
11. It would be noticed that this article consists of three parts. The first part deals with the
question about the form and the cause-title for a suit intended to be filed by or against the
Government of India, or the Government of a State. The second part provides inter alia,
that a State may sue or be sued in relation to its affairs in cases like those in which a
corresponding Province might have sued or been sued if the Constitution had not been
enacted. In other words, when a question arises as to whether a suit can be filed against
the Government of a State, the enquiry has to be: could such a suit have been filed against
a corresponding Province if the Constitution had not been passed? The third part of the
article provides that it would be competent to the Parliament or the Legislature of a State
to make appropriate provisions in regard to the topic covered by Art. 300(1). Since no
such law has been passed by the respondent in the present case, the question as to
whether the respondent is liable to be sued for damages at the instance of the appellant,
37
has to be determined by reference to another question and that is, whether such a suit
would have been competent against the corresponding Province.
12. It is in respect of this aspect of the matter that the Chief Justice enunciated a principle
which has been consistently followed in all subsequent decisions. Said the learned Chief
Justice: "there is a great and clear distinction between acts done in the exercise of what
are usually termed sovereign powers, and acts done in the conduct of undertakings which
might be carried on by private individuals without having such powers delegated to
them." Having thus enunciated the basic principle, the Chief Justice stated another
proposition as flowing from it. He observed that "where an act is done, or a contract is
entered into, in the exercise of powers usually called sovereign powers; by which we
mean powers which cannot be lawfully exercised except by sovereign, or private
individual delegated by a sovereign to exercise them, no action will lie." And, naturally it
follows that where an act is done, or a contract is entered into, in the exercise of powers
which cannot be called sovereign powers, action will lie. That, in brief, is the decision of
the Supreme Court of Calcutta in the case of the Peninsular and Oriental Steam
Navigation Co.
13. Thus, it is clear that this case recognizes a material distinction between act committed by
the servants employed by the State where such acts are referable to the exercise of
sovereign powers delegated to public servants, and acts committed by public servants
which are not referable to the delegation of any sovereign powers. If a tortious act is
committed by a public servant and it gives the rise to a claim for damages, the question to
ask is: was the tortious act committed by the public servant in discharge of statutory
functions which are referable to, and ultimately based on, the delegation of the sovereign
powers of the State to such public servant? If the answer is in the affirmative, the action
for damages for loss caused by such tortious act will not lie. On the other hand, if the
tortious act has been committed by a public servant in discharge of duties assigned to him
not by virtue of the delegation of any sovereign power, an action for damages would lie.
The act of the public servant committed by him during the course of his employment is,
in this category of cases, an act of a servant who might have been employed by a private
individual for the same purpose. This distinction which is clear and precise in law, is
sometimes not borne in mind in discussing questions of the State's liability arising from
tortious acts committed by public servants. That is why the clarity and precision with
which this distinction was emphasized by Chief Justice Peacock as early as 1861 has
been recognized as a classic statement on this subject.
14. In Shivabhajan Durgaprasad v. Secretary of State for India (1904) [I.L.R. 28 Bom 314]
this point arose for the decision of the Bombay High Court. In that case, a suit had been
instituted against the Secretary of State in Council to recover damages on account of the
negligence of a chief constable with respect to goods seized; and the plaintiffs claim was
resisted by the Secretary of State in Council on the ground that no action lay. The High
Court upheld the plea raised by the defense on the ground that the chief constable seized
the goods not in obedience to an order of the executive Government, but in performance
of a statutory power vested in him by the Legislature. In the Secretary of State for India
in Council v. A. Cockcraft & Anr. [I.L.R. 39 Mad. 351], a claim for damages against the
38
Secretary of State arose in respect of inquiries sustained by the plaintiff in a carriage

accident which was alleged to have been due to the negligent stacking of gravel on a road
which was stated in the plaint to be a military road maintained by the Public Works
Department of the Government. The Madras as High Court held that the plaintiff had in
law no cause of action against the Secretary of State for India in Council in respect of
acts done by the East India Company in the exercise of its sovereign powers. This
conclusion was based on the finding that the provision and maintenance of roads,
especially a military road, is one of the functions of Government carried on in the
exercise of its sovereign powers and is not an undertaking which might have been carried
on by private persons.
15. In the present case, the act of negligence was committed by the police officers while
dealing with the property of Ralia Ram which they had seized in exercise of their
statutory powers. Now, the power to arrest a person, to search him, and to seize property
found with him, are powers conferred on the specified officers by statute and in the last
analysis, they are powers which can be properly characterized as sovereign powers; and
so, there is no difficulty in holding that the act which gave rise to the present claim for
damages has been committed by the employee of the respondent during the course of its
employment; but the employment in question being of the category which can claim the
special characteristic of sovereign power, the claim cannot be sustained; and so, we
inevitably hark back to what Chief Justice Peacock decided in 1861 and hold that the
present claim is not sustainable.
16. Before we part with this appeal, however, we ought to add that it is time that the
Legislatures in India seriously consider whether they should not pass legislative
enactments to regulate and control their claim of immunity in cases like this on the same
lines as has been done in England by the Crown Proceedings Act, 1947. It will be
recalled that this doctrine of immunity is based on the Common Law principle that the
King commits no wrong and that he cannot be guilty of personal negligence or
misconduct, and as such cannot be responsible for the negligence or misconduct of his
servants. Another aspect of this doctrine was that it was an attribute of sovereignty that a
State cannot be sued in its own courts without its consent. This legal position has been
substantially altered by the Crown Proceedings Act, 1947Our only point in mentioning
this Act is to indicate that the doctrine of immunity which has been borrowed in India in
dealing with the question of the immunity of the State in regard to claims made against it
for tortious acts committed by its servants, was really based on the Common Law
principle which prevailed in England; and that principle has now been substantially
modified by the Crown Proceedings Act. In dealing with the present appeal, we have
ourselves been disturbed by the thought that a citizen whose property was seized by
process of law, has to be told when he seeks a remedy in a court of law on the ground that
his property has not been returned to him, that he can make no claim against the State.
That, we think, is not a very satisfactory position in law. The remedy to cure this position,
however, lies in the hands of the Legislature.
17. The result is, the appeal fails, but in the circumstances of this case, we direct that the
parties should bear their own costs throughout.
39
RUDUL SAH v. STATE OF BIHAR AND ANR.
Rudul Sah: Appellant
v.
State of Bihar and Another: Respondent

AIR 1983 SC 1086
Y.V. Chandrachud, J.
1. This Writ Petition discloses a sordid and disturbing state of affairs. Though the
petitioner was acquitted by the Court of Sessions, Muzaffarpur, Bihar, on June 3,
1968 he was released from the jail on October 16, 1982, that is to say, more than 14
years after he was acquitted. By this Habeas Corpus petition, the petitioner asks for
his release on the ground that his detention in the jail is unlawful. He also asked for
certain ancillary reliefs like rehabilitation, reimbursements of expenses which he may
incur for medical treatment and compensation for the illegal incarceration.
2. This petition came up before us on November 22, 1982 when we were informed by
Shri Goburdhan, counsel for the State of Bihar, that the petitioner was already
released from the jail. The relief sought by the petitioner for his release thus became
infructuous but despite that, we directed that a Notice to show cause be issued to the
State of Bihar regarding prayers 2, 3and 4 of the petition. By prayer No. 2 the
petitioner asks for medical treatment at Government expense, by prayer No. 3 he asks
for an ex gratia payment for his rehabilitation, while by prayer No. 4 he asks for
compensation for his illegal detention in the jail for over 14 years.
3. We expected a prompt response to the Show Cause Notice from the Bihar
Government at least at this late stage, but they offered no explanation for over four
months. The Writ Petition was listed before us on March 31, 1983 when Shri
Goburdhan restated that the petitioner had been already released from the jail. We
passed a specific order on that date to the effect that the release of the petitioner
cannot be the end of the matter and we called upon the Government of Bihar to
submit a written explanation supported by an affidavit as to why the petitioner was
kept in the jail for over 14 years after his acquittal. On April 16, 1983, Shri AlakhDeo
Singh, Jailor, Muzaffarpur Central Jail, filed an affidavit in pursuance of that order.
40
4. That takes us to the question as to how the grave injustice which has been perpetrated
upon the petitioner can be rectified, in so far as it lies within our power to do in the
exercise of our writ jurisdiction under Article 32 of the Constitution. That article confers
power on the Supreme Court to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by Part III. The
right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by Part III is "guaranteed, that is to say, the right to move the Supreme
Court under Article 32 for the enforcement of any of the rights conferred by Part III of
the Constitution is itself a fundamental right.
5. It is true that Article 32 cannot be used as a substitute for the enforcement of rights and
obligations which can be enforced efficaciously through the ordinary processes of Courts,
Civil and Criminal. A money claim has therefore to be agitated in and adjudicated upon
in a suit instituted in a court of lowest grade competent to try it. But the important
question for our consideration is whether in the exercise of its jurisdiction under Article
32, this Court can pass an order for the payment of money if such an order is in the nature
of compensation consequential upon the deprivation of a fundamental right. The instant
cave is illustrative of such cases. The petitioner was detained illegally in the prison for
over fourteen years after his acquittal in a full-dressed trial. He filed a Habeas Corpus
petition in this Court for his release from illegal detention. He obtained that relief, our
finding being that his detention in the prison after his acquittal was wholly unjustified. He
contends that he is entitled to be compensated for his illegal detention and that we ought
to pass appropriate order for the payment of compensation in this Habeas Corpus petition
itself.
6. We cannot resist this argument. We see no effective answer to it save the stale and sterile
objection that the petitioner may, if so advised, file a suit to recover damages from the
State Government. Happily, the State's Counsel has not raised that objection. The
petitioner could have been relegated to the ordinary remedy of a suit if his claim to
compensation was factually controversial, in the sense that a civil court may or may not
have upheld his claim. But we have no doubt that if the petitioner files a suit to recover
damages for his illegal detention, a decree for damages would have to be passed in that
suit, though it is not possible to predicate, in the absence of evidence, the precise amount
which would be decreed in his favor. In these circumstances, the refusal of this Court to
pass an order of compensation in favor of the petitioner will be doing mere lip-service to
his fundamental right to liberty which the State Government has so grossly violated.
Article 21 which guarantees the right to life and liberty will be denuded of its significant
content if the power of this Court were limited to passing orders to release from illegal
41
detention. One of the telling ways in which the violation of that right can reasonably be
prevented and due compliance with the mandate of Article 21 secured, is to mulct its
violators in the payment of monetary compensation. Administrative sclerosis leading to
flagrant infringements of fundamental rights cannot be corrected by any other method
open to the judiciary to adopt. The right to compensation is some palliative for the
unlawful acts of instrumentalities which act in the name of public interest and which
present for their protection the powers of the State as a shield. If civilization is not to
perish in this country as it has perished in some others too well-known to suffer mention,
it is necessary to educate ourselves into accepting that, respect for the rights of
individuals is the true bastion of democracy. Therefore, the State must repair the damage
done by its officers to the petitioner's rights. It may have recourse against those officers.
7. Taking into consideration the great harm done to the petitioner by the Government of
Bihar, we are of the opinion that, as an interim measure, the State must pay to the
petitioner a further sum of Rs. 30,000 (Rupees thirty-thousand) in addition to the sum of
Rs. 5,000 (Rupees five thousand) already paid by it. The amount shall be paid within two
weeks from today. The Government of Bihar agrees to make the payment though, we
must clarify that our order is not based on their consent.
8. This order will not preclude the petitioner from bringing a suit to recover appropriate
damages from the state and its erring officials. The order of compensation passed by us
is, as we said above, in the nature of a palliative. We cannot leave the petitioner penniless
until the end of his suit, the many appeals and the execution proceedings. A full-dressed
debate on the nice points of fact and law which takes place leisurely in compensation
suits will have to await the filing of such a suit by the poor Rudul Sah. The Leviathan
will have liberty to raise those points in that suit. Until then, we hope, there will be no
more Rudul Shahs in Bihar or elsewhere.
42
DONOGHUE v. STEVENSON
Donoghue: Appellant
v.
Stevenson: Respondent
[1932]UK HL 100
Lord Atkin, Thankerton and MacMillan, JJ

1. This case is, also known as the snail in the bottle case, is a significant case in Western
law. The House of Lords ruling in this case established the civil law tort of negligence
and obliged manufacturers to observe a duty of care towards their customers. The events
of the case took place in Paisley, Scotland in 1928. The case is that Stevenson, the
defendant as the manufacturers of an article intended for consumption and contained in a
receptacle which prevented inspection owed a duty to her as consumer of the article to
take care that there was no noxious element in the goods, that they neglected such duty
and are consequently liable for any damage caused by such neglect.
2. Brief facts of the case are that On 26 August 1928, Ms. Donoghue drank a bottle of
ginger beer, manufactured by Stevenson, which her friend had bought from a retailer and
given to her. The bottle contained the decomposed remains of a snail which were not and
could not be detected until the greater part of the contents of the bottle had been
consumed since the bottle was not made of clear glass. Donoghue had consumed most of
its contents before she became aware of the snail. She later fell ill and a physician
diagnosed her with gastroenteritis. Donoghue subsequently took legal action against Mr
David Stevenson, the manufacturer of the ginger beer. She lodged a writ in the Court of
Sessions, Scotlands highest civil court, seeking 500 damages.
3. Donoghue could not sue Stevenson for breach of contract, because a friend had purchased
the drink for her. Instead, her lawyers claimed that Stevenson had breached a duty of care
to his consumers and had caused injury through negligence an area of civil law which at
the time was largely untested. Stevensons lawyers challenged Donoghues action, on the
basis that no precedents existed for such a claim. They referred to an earlier action by
Donoghues lawyer, Mullen v. AG Barr, where a dead mouse was found in a bottle of soft
drink; judges in this case dismissed it because of a lack of precedent. Donoghues initial
action failed, however she was granted leave to appeal to the House of Lords, which at
the time still had the judicial authority to hear appellate cases. The leading judgement,
delivered by Lord Atkin in 1932, established that Stevenson should be responsible for the
well-being of individuals who consume his products, given that they could not be
inspected. The case was returned to the original court; Stevenson died before the case
was finalised and Donoghue was awarded a reduced amount of damages from his estate.
43
4. Before examining the merits two comments are desirable:
i. That the Donoghue case rests solely on the ground of a tort based not on fraud but on
negligence;
ii. That throughout the appeal the case has been argued on the basis, undisputed by the
Second Division and never questioned by counsel for Stevenson or by any of your
Lordships, that the English and the Scots law on the subject are identical.
5. The outcomes of Donoghue v. Stevenson established several legal principles and

precedents:
6. Negligence. Firstly, the House of Lords ruling affirmed that negligence is a tort. A
plaintiff can take civil action against a respondent, if the respondents negligence causes
the plaintiff injury or loss of property. Previously the plaintiff had to demonstrate some
contractual arrangement for negligence to be proven, such as the sale of an item or an
agreement to provide a service. Since Donoghue had not purchased the drink, she could
prove no contractual arrangement with Stevenson yet Lord Atkins judgement
established that Stevenson was still responsible for the integrity of his product.
7. Duty of care. Secondly, the case established that manufacturers have a duty of care to the
end consumers or users of their products. According to Lord Atkins ratio decendi, a
manufacturer of products, which he sells to reach the ultimate consumer in the form in
which they left him owes a duty to the consumer to take reasonable care. This
precedent has evolved and now forms the basis of laws that protect consumers from
contaminated or faulty goods. These protections began as common law but many have
since been codified in legislation, such as the Trade Practices Act (Commonwealth,
1974).
8. Neighbour principle. Thirdly, the Donoghue v. Stevenson case produced Lord Atkins
controversial neighbour principle, which extended the tort of negligence beyond the
tortfeasor and the immediate party. It raised the question of exactly which people might
be affected by negligent actions. In Donoghues case she had not purchased the ginger
beer but had received it as a gift; she was a neighbour rather than a party to the contract.
Atkin said of this principle: You must take reasonable care to avoid acts or omissions
which you can reasonably foresee would be likely to injure your neighbour. Who, then, in
law, is my neighbour? The answer seems to be persons who are so closely and directly
affected by my act that I ought to have them in [mind] when I am [considering these] acts
or omissions.
9. The dicta of Lord Esher M.R. in Heaven v. Pender are rightly relied on by Donghue. The
material passage is as follows, "The proposition which these recognized cases suggest
and which is therefore to be deduced from them is that wherever one person is by
circumstances placed in such a position with regard to another that everyone of ordinary
sense who did think would at once recognize that if he did not use ordinary care and skill
in his own conduct with regard to those circumstances he would cause danger of injury to
the person or property of the other a duty arises to use ordinary care and skill to avoid
such danger. . . . Let us apply this proposition to the case of one person supplying goods
44
or machinery or instruments or utensils or the like for the purpose of their being used by
another person but with whom there is no contract as to the supply. The proposition will
stand thus : whenever one person supplies goods or machinery or the like for the purpose
of their being used by another person under such circumstances that everyone of ordinary
sense would if he thought recognize at once that unless he used ordinary care and skill
with regard to the condition of the thing supplied or the mode of supplying it there will be
danger of injury to the person or property of him for whose use the thing is supplied and
who is to use it a duty arises to use ordinary care and skill as to the condition or manner
of supplying such thing. And for a neglect of such ordinary care or skill whereby injury
happens a legal liability arises to be enforced by an action for negligence. This includes
the case of goods, etc., supplied to be used immediately by a particular person or persons
or one of a class of persons where it would be obvious to the person supplying it if he
thought that the goods would in all probability be used at once by such persons before a
reasonable opportunity for discovering any defect which might exist and where the thing
supplied would be of such a nature that a neglect of ordinary care or skill as to its
condition or the manner of supplying it would probably cause danger to the person or
property of the person for whose use it was supplied and who was about to use it. It
would exclude a case in which the goods are supplied under circumstances in which it
would be a chance by whom they would be used or whether they would be used or not or
whether they would be used before there would probably be means of observing any
defect or where the goods would be of such a nature that a want of care or skill as to their
condition or the manner of supplying them would not probably produce danger of injury
to person or property. The cases of vendor and purchaser and lender and hirer under
contract need not be considered, as the liability arises under the contract and not merely
as a duty imposed by law, though it may not be useless to observe that it seems difficult
to import the implied obligation into the contract except in cases in which if there were
no contract between the parties the law would according to the rule above stated imply
the duty."
10. The principle contended for must be this: that the manufacturer or indeed the repairer of
any article, apart entirely from contract, owes a duty to any person by whom the article is
lawfully used to see that it has been carefully constructed. All rights in contract must be
excluded from consideration of this principle, for such rights undoubtedly exist in
successive steps from the original manufacturer down to the ultimate purchaser,
embraced in the general rule that an article is warranted as reasonably fit for the purpose
for which it is sold. Nor can the doctrine be confined to cases where inspection is difficult
or impossible to introduce. This conception is simply to misapply to tort doctrines
applicable to sale and purchase.
45
ISHWAR DEVI MALIK AND ORTHERS v. UNION OF INDIA
Ishwar Devi Malik and Others: Appellant

v.
Union of India: Respondent
AIR 1969 DELHI 183
I Dua, T Tatachari, JJ
1. This is an appeal filed under Section 110-D of the Motor Vehicles Act against the order
of the Motor Accidents Claims Tribunal, Delhi, dated 17-3-1966, dismissing an
application filed before the Claims Tribunal under Section 110-A of the said Act for the
payment of compensation.
2. The first appellant herein is the widow of one Sham Lal Malik, the sixth respondent and
the second appellant are the sons, the third appellant is the daughter, and the fourth and
the fifth appellants are the father and the mother of the said Sham Lal Malik. They filed
the aforesaid application as heirs of the said Sham Lal Malik claiming a sum of Rs.
4,50,000/- as compensation arising out of an accident which took place on 26-12-1961 at
Farash Khana Bus Stop, G. B. Road, at about 4 p. m., resulting in the death of the
aforesaid Sham Lal Malik. The applicants stated in their application that the deceased
Sham Lal Malik was about 40 years old and was doing business earning a monthly
income of about Rs. 1,700/- per month; that on 26-12-1961 the deceased was waiting for
a bus The driver of another bus crossed the bus which was standing so closely that the
deceased was crushed between the two buses, and as a result of the same he sustained
very serious injuries on the chest; that he was then taken to the Irwin Hospital where, as
a result of the said injuries, he died the same day. Allegations were that the accident was
caused on account of the rash and negligent acts of the Conductor and the Driver of the
bus No. Dlp 230 of route No. 2; that the said Conductor and Driver (respondents Nos. 4
and 5) were the employees of respondents Nos. 1 to 3, namely (1) the Union of India
through the Secretary to the Ministry of Home Affairs, Government of India, New Delhi,
(2) the Municipal Corporation of Delhi, and (3) the Delhi Transport Undertaking through
the Officer-in charge, Scindia House, New Delhi; that the accident took place during the
course of their employment; and that, therefore the respondents 1 to 3 were also liable to
pay the compensation claimed by the applicants.
3. It was also stated in the application that the deceased who was aged about 40 years was
in a very good state of health; that he was a partner in a flourishing business, namely,
M/s Arjan Dass Gupta & Brothers. Coal Merchants, which have seven branches in all
important places in India; that the deceased was assessed to income-tax on the yearly
income of Rs. 21,296/- in the assessment year 1960-61; that his income was bound to
improve every year; that the age of the widow of the deceased was 38 years; that the
eldest son of the deceased was aged about 19 years and was studying in B. Sc. (Final) in
Kirori Mal College, Delhi; that the other son of the deceased was aged about 18 years
and was studying in the 2nd year in Shri Ram College of Commerce; that the daughter of
46
the deceased aged about 14 years, was studying in the Nav Bharat Higher Secondary
School; that the father and the mother of the deceased were 67 and 65 years old
respectively; and that the applicants claim Rupees 4,50,000/- as compensation from the
respondents taking into consideration the loss of pecuniary benefits which they would
have received if the deceased had nto died, his pecuniary savings from his income, his
contributions to the family for their maintenance and education, etc., and also the
assistance he would have continued to give to his family members and the loss of estate.
4. The pleadings were made before the Claims Tribunal which decided in favour of the
Respondents and held them not guilty for rash &negligent driving.However on appeal
before the Honble Supreme Court , following issues were raised by the Respondent:(1)
Whether the death of Sham Lal Malik was due to an accident caused by the rash driving
and negligence of the driver and the conductor respectively of' Bus No. Dlp 230 on 26-
12-1961 at about 4 p.m. at Farash Khana Bus Stop?(2) Whether the deceased was guilty
of contributory negligence; and (3) to what amount of compensation the appellants
(applicants) were entitled and from whom?
5. Thus, according to the appellants (applicants), the bus No. 230 of route No. 2 stopped at
the Farash Khana bus stop, the deceased Sham Lal was boarding the bus and was still on
the footboard when the conductor gave the bell with the result that the bus moved and
that too very closely to the standing bus, and Sham Lal got pressed between the two
buses. On the other hand, the version of the respondents was that the offending bus did
nto stop at Farash Khana bus stop, that it was already full and was, therefore, slowed
down as it had to overtake or pass by the other stationary bus, that the deceased Sham
Lal tried to board the moving bus, and he being a bulky person, a good portion of his
body was outside the bus, and he hit against the stationary bus and fell down on the road.
The question, therefore, is as to which of the versions is correct. The Claims Tribunal
accepted the version of the respondents.
6. The Claims Tribunal gave two reasons for not believing the witness. The Tribunal firstly
observed that the statement of the witness that there was no sufficient space for him to
overtake the bus seemed to be wrong and that the Tribunal was nto prepared to believe
the said statement of the witness, and opined that "if at all, he reached there after the
accident and he did nto himself actually see the facts leading to the accident. Thus , the
Appellate Court held that " In our opinion, the Tribunal was in error in taking the above
view.
7. After examination of witnesses of Appellants the court preferred to accept their version
and held that the bus of route No. 2 stopped at the Farash Khana bus stop at about a
distance of 5 or 6 feet from the stationary bus of route No. 13, that the deceased boarded
the bus, and when he was still on the foot-board, the conductor gave the bell and the bus
moved passing by the side of the stationary bus very closely, with the result that the
deceased either struck against the right rear corner of the stationary bus or got pressed
between the two buses and sustained the injuries, as a result of which he died later in the
hospital.
47
8. The next question for consideration is as to whether the accident was caused by the rash
driving and negligence of the driver and the conductor respectively of the offending bus.
According to the findings arrived at by us above, the deceased Sham Lal boarded the bus
when it was stationary, but when he was still on the foot-board with a part of his body
outside the bus, the conductor gave the bell and the bus moved passing by the side of the
stationary bus very closely. Shri S, N. Chopra, the learned counsel for the appellants,
contended that the deceased was not at all in wrong in boarding the bus which was
stationary, that it was the conductor who was negligent and even rash in ringing the bell
and thereby giving the signal to the driver for the starting of the bus without waiting till
the deceased Shani Lal moved himself from the foot-board into the bus. Shri Chopra also
contended that the driver also acted in a rash and negligent manner in overtaking or
passing by the stationary bus of route No. 13 very closely. We consider that there is
considerable force in the two contentions of Shri Chopra.The fact remains that the
conductor was aware of the deceased person running towards the bus and getting on to
and standing on the foot-board of the bus, on his own statements in his deposition.
Therefore, the question is as to whether he should nto have, in that situation, given the
bell for the starting of the bus without waiting till the deceased moved from the foot-
board and gto inside the bus. The answer is obviously that he should nto have done so.
9. It need hardly be emphasised that the safety of the public who travel by public
conveyances like the bus in question is the primary concern of the conductor and the
driver who are in charge of and control of public conveyances. When the conductor saw
that the deceased. Sham Lal, was boarding the bus and was yet on the foot-board, he
should nto have given the bell for the starting of the bus, but should have waited till
Sham Lal gto inside the bus. To have given the bell, and thus signalled the driver to start
the bus, is nothing but rashness and negligence on the part of the conductor. The conduct
of the driver also was rash and negligent, in that he drove the offending bus so closely
near to the, stationary bus that there was no sufficient clearance between the two buses
and the deceased gto squeezed or sand-witched between the two buses. The said injuries
suggest that it was nto a case of mere striking against the rear corner of the stationary
bus, but was a case of the deceased getting squeezed or pressed between the two buses.
10. It is also true that the driver of the offending bus, Rule W. 2, stated that the distance
between the two buses at the time of the overtaking was about 11/2 feet. The mention of
the said distance by the witness was and could only be an approximation. The very fact
that the deceased got pressed or squeezed between the two buses speaks for itself, and
clearly shows that the offending bus passed very closely by the stationary bus. It has to
be recalled that the width of the road on the left side of the verge was stated to be 20 to
22 feet, and the stationary bus was parked at a distance of about 11/2 feet from the Patri
on the left side. Thus, adding the said 1 1/2 feet to the approximate width of the bus at its
rear (i.e. about 6 feet), a space of about 12 feet or even more, between the stationary bus
and the verge, was available to the driver of the offending bus. He thus had ample space
for giving a larger clearance between the two buses. He, however, drove his bus very
closely near to the stationary bus. In doing so, he was obviously careless, rash and
negligent. On a consideration of the evidence, we are of the opinion that it has been
48
established by the appellants (applicants) that the accident was caused by the rash
driving and negligence of the driver and the conductor of the offending bus No. Dlp 230.
11. The next contention of Shri D. D. Chawla was that the deceased Sham Lal was guilty of
contributory negligence. In view of our finding on a consideration of the evidence in the
present case that the bus of route No. 2 was not in motion as alleged by the respondents
but was stationary, as alleged by the appellants, at the time when Sham Lal boarded it,
the question of contributory negligence on the part of Sham Lal does not arise.
12. As regards the compensation payable to the appellants (applicants), it has to be

remembered that the application for compensation was filed under Section 110-A of the
Motor Vehicles Act, 1939, and not under Section 1-A of the Fatal Accidents Act, 1855.
The preamble to the Fatal Accidents Act shows that the said Act was enacted in 1855 as
it was considered at that time that no action for suit was maintainable in any court
against a person who, by his wrongful act, neglect or default, may have caused the death
of another person, and because it was right and expedient that the wrong doer in such a
case should be answerable in damages for the injury so caused by him. The act provided
for the maintainability of civil actions by certain persons to recover compensation for
wrongs resulting in the death of a person to whom they stood in special relation. The
provisions of the Act are to a large extent similar to the provisions in the English Fatal
Accidents Act, known as the Lord Camp-bell's Acts. The Act provides for compensation
or damages-(1) for the loss caused by the death of the person as a result of the accident
to the representatives of the deceased person, namely, wife, husband, parent and child;
and (2) for any pecuniary loss to the estate of the deceased.
13. It is thus a general law providing for compensation to the representatives of a, deceased
person or to his estate for the loss; occasioned by his death as a result of an accident. On
the other hand, the Motor Vehicles Act is a special law which, by Sections 110 to 110-
F provides for adjudication upon claims for compensation in respect of accidents
involving the death of, or injury to, persons arising out of the use of motor vehicles.
By Section 110, a State Government is empowered to constitute one or more Motor
Accidents Claims Tribunals for adjudicating upon the aforesaid claims for
compensation. Section 110-A provides that an application for compensation arising out
of an accident of the nature specified in Section 110 (1) may be made by the person who
has sustained the injury, or where death has resulted from the accident, by the legal
representatives of the deceased, or by an agent duly authorised by the person injured or
the legal representatives of the deceased, as the case may be, and also prescribes the
Period within which such an application may be made. Section 110-B provides for the
holding of an enquiry into the claim and for the making of an award by the said
Tribunal. Section 110-C contains provisions regarding the procedure and the powers of
the Claims Tribunal. Section 110-D provides a right of appeal to the High Court to a
person aggrieved by the award. Section 110-E provides for the recovery of money due
from an insurer under an award as arrear of land revenue. Section 110-F bars the
jurisdiction of civil courts to entertain any question relating to any claim for
compensation which may be adjudicated upon by a Claims Tribunal. The Act purports to
consolidate and amend the law relating to motor vehicles. The present Sections
49
110 to 110-F were substituted in the place of the old Section 110 by Section 80 of the
Motor Vehicles (Amendment) Act, 1956 (Act No. 100 of 1956), and were intended to
provide a cheaper and speedier remedy by way of an application before a Claims
Tribunal instead of the remedy of a suit in a civil court as provided in the Fatal Accidents
Act. Thus, the Act is a self-contained Act, and, as such, an application filed
under Section 110-A of the Motor Vehicles Act is governed by the provisions in
the Motor Vehicles Act and nto by the provisions in the Fatal Accidents Act. The claim
in the present case is under sections 110 to 110-F of the Motor Vehicles Act. It has no
connection whatever with the Indian Fatal Accidents Act (No. 13 of 1855) and is nto
advanced under any Section or provision of that Act. It is noteworthy that Sections
110 to 110-F that we have referred to make no mention of any kind concerning any of
the provisions of the Fatal Accidents Act, and do nto incorporate any such provision
even by the most oblique reference."
14. Thus, a claim for compensation by an application under the Motor Vehicles Act has to
be determined with reference to the provisions in the Motor Vehicles Act. Section 110-
B of the Motor Vehicles Act runs as under: "110-B. Award of the Claims Tribunal-- On
receipt of an application for compensation made under Section 110-A, the Claims
Tribunal shall, after giving the parties an opportunity of being heard, hold an enquiry
into the claim and may make award determining the amount of compensation which
appears to it to be just and specifying the person or persons to whom compensation shall
be paid; and in making the award, the Claims Tribunal shall specify the amount which
shall be paid by the insurer."
15. The measure for the compensation is thus stated to be the amount of compensation
which appears to the Tribunal to be just. On the other hand, in Section 1-A of the Fatal
Accidents Act, provision is made that- "The Court may give such damages as it may
think proportioned to the loss resulting from such death to the parties respectively, for
whom and for whose benefit such action shall be brought and under Section 2 of the said
Act, provision is made that the administrator or representative of the deceased may insert
a claim for and recover- "any pecuniary loss to the estate of the deceased occasioned by
such wrongful act, neglect or default."In other words, the said principles laid down in the
decisions under the Fatal Accidents Act may be used or applied if they, in the opinion of
the Tribunal, would serve as a proper measure of what is just compensation on the facts
and circumstances of the case in hand.
16. As already stated, there are two distinct kinds of damages or compensation i.e. two
distinct heads, recoverable under the Fatal Accidents Act. 1855. The first is the
compensation proportionate to the loss resulting from death to the beneficiaries named
in Section 1-A while the second, provided for in Section 2 of the Act, is the
compensation for the loss resulting to the estate of the deceased, not from his death or as
a consequence of his death, but resulting from the wrongful act, neglect or default and as
a consequence of such act or default Decisions under the Fatal Accidents Act have
interpreted the loss in both the cases as pecuniary loss. In the present case, there is no
claim for compensation of the second category or head, and it is, therefore, not necessary
to consider the same. As regards the first head of compensation the basic rule is stated to
50
be that the beneficiaries are entitled to compensation for a pecuniary or material loss
from the death of a person or the support of which the beneficiaries have been deprived.
It appears to us that this principle provides a sound and reasonable basis in assessing just
compensation in claims under the Motor Vehicles Act. In fact, Shri Chopra, the, learned
counsel for the appellants, stated before us, and we think rightly, that the application of
this principle in the present case would be a just and proper one. Shri Chawla, the
learned counsel for the respondents also maintained that this principle has to be applied
in the present case.
17. It is clear from the principle enunciated by the Supreme Court, which, in our opinion,
should be applied in the present case in determining the just compensation payable to the
appellants (applicants), that the pecuniary loss to the claimants has to be ascertained by
balancing the loss to them of the future pecuniary benefit and the pecuniary advantage
which came to them by reason of the death.
18. We shall now consider if any pecuniary advantage came to any of the appellants
(applicants) by reason of the death of Sham Lal. Such a pecuniary benefit, if any would
have to be deducted from or balanced against the aforesaid pecuniary loss. It is for the
claimants to adduce evidence and show what the income of the deceased was and what
pecuniary loss they had suffered by the death. Once they adduce such evidence, it is then
for the opposite party to adduce evidence and show what pecuniary advantages the
claimants received by reason of the death and which they would ask the Court to deduct
from or balance against the pecuniary loss shown by the claimants. In our opinion, the
reasons for the said deduction are based on justice and fairplay between the parties, and,
therefore, a deduction on that account may be made even in claims made under
the Motor Vehicles Act.
19. In this appeal, the eldest son, Jagjit Kumar, who was one of the claimants before the
Tribunal, was added as respondent 6 in the appeal. However, as the cause of action for
all the claimants was the same, and we are going to make an order which ought to have
been made by the Claims Tribunal we are of the opinion that in exercise of our power
under Order 41, Rule 33 read with Section 151, Code of Civil Procedure, we should
make an order for compensation in favor of Jagjit Kumar also in order to do complete
justice between the parties.
20. Thus it was finally held by the Court that In view of our finding that the accident took
place on account of the rashness and negligence on the part of the Driver and the
Conductor of the offending bus, they (respondents 4 and 5) as well as the Municipal
Corporation of Delhi and the Delhi Transport Undertaking (respondents 2 and 3) are
liable for the payment of the compensation to the claimants. Accordingly, we allow the
appeal, set aside the judgment and order of the Claims Tribunal, dated 17-3-1966, and
order that Jagjit Kumar Malik, Naresh Kumar Malik, Asha Malik be paid Rs. 25,500/-
each, and Mela Ram Malik and Smt. Lakshmi Devi, parents of Sham Lal, be paid Rs.
6,375/- each, by respondents 2 to 5. The appellants (applicants) are also entitled to their
costs throughout payable by respondents 2 to 5. Appeal allowed.
51
SMT. SUSHMA MITRA v. MADHYA PRADESH STATE ROAD
Smt. Sushma Mitra: Appellant
v.
Madhya Pradesh State Road: Respondent
AIR 1974 MP 63
G SINGH, S RAINA,JJ
1. This is an appeal by the plaintiff against the dismissal of her suit for damages for personal
injuries sustained in a motor accident.
2. The facts that the plaintiff alleged were that on June 12, 1959 she was going in Bus No.
MPJ 1690 -- belonging to the Madhva Pradesh State Road Transport Corporation, from
Jabalour to Chhindwara. A truck bearing No. MPJ 9310 owned by Bakhatwarsingh,
defendant No. 2. was Coming from the opposite direction-There was a head-on collision
between the two vehicles at a distance of about seven miles from Jabalpur. As a result of
this impact, the plaintiff received severe injuries to her right elbow causing multiple
fractures. It was further pleaded that the injuries have resulted in a permanent disability
of the right hand. Both the drivers, according to the case of the plaintiff, were driving the
respective vehicles in utter disregard of the rules of driving and without any regard to the
safety of passengers. The plaintiff claimed a sum of Rupees 73.238.80 as damages
against the defendants. The first defendant in the suit is the Madhva Pradesh State Road
Transport Corporation which is the owner of the bus. The second defendant is
Bakhatwarsingh who is the owner of the truck. The third defendant Dhaniram was at the
relevant time driver of the truck. The fourth defendant is Indian Insurance Pools
Companies Association which is the insurer of the bus and the fifth defendant is the
Northern India Motor Owners Insurance Co. which is the insurer of the truck.
3. The defendants 2 and 3, the owner and the driver of the truck, remained ex parte. The
fifth defendant, the Northern India Motor Owners Insurance Co., Which is the insurer of
the truck, pleaded that the Plaintiff projected her right elbow outside the bus in which she
was travelling and sustained the injuries on account of her own fault knowing well that a
vehicle was coming from opposite direction. It was further pleaded that the bus in which
she was travelling occupied a major portion of the road keeping more to the right than to
the left. The defendant No. 4. the insurer of the bus. Paid Rs. 2,000/- to the plaintiff. This
is the maximum amount which an insurer of a bus is liable to pay in case of an injury to a
passenger travelling in the bus. No defence was, therefore, put forward by defendant No.
4. The defendant No. 1, the Corporation, which is the owner of the bus. denied the plaint
allegations and submitted that the plaintiff having settled with the insurer of the bus there
was total discharge of liability.
52
4. The trial Court came to the conclusion that there was no head-on collision between the
bus and truck nor any physical contact between the two. It was also held that plaintiff was
protruding her elbow from the window of the bus and the elbow was hit by the truck
while crossing the bus and this is how the plaintiff received the injuries. In the opinion of
the trial Court, the plaintiff herself was negligent in keeping out her elbow and. therefore,
she was not entitled to any damages. The trial Court, however, assessed the damages to
which the plaintiff would have been entitled had the defendants been guilty of
negligence. Special damages were assessed at Rs. 8,238.70 and general damages were
assessed at Rs. 15.000/-
5. It cannot be disputed that the driver of a bus which carries passengers owes a duty of care
for the safety of passengers. While driving he must have the passengers in contemplation
and he must avoid acts or omissions which can reasonably be foreseen to injure them and
in deciding what acts or omissions he should avoid, he must bear in mind the normal
habits of passengers. It is a matter of common experience that passengers who sit
adjoining a window very often rest their arm on the window sill by which act the elbow
projects outside the window. The driver of the bus must have these passengers also in
contemplation and. therefore, while overtaking or crossing another vehicle on the road he
must not come too close to the vehicle that is overtaken or crossed and he must leave
sufficient gap between the vehicles to avoid injury to these passengers. The driver of a
vehicle coming from the opposite direction owes a similar duty while crossing a
passenger bus. He too must have in contemplation passengers sitting near the windows of
the oncoming bus who may have their hands resting on the windows, and in crossing the
bus he must not only avoid contact with the body of the bus but he must also avoid
coming in contact with the elbow of any passenger that may be resting on the window
and projecting outside the body of the bus. He must, therefore, take precautions to move
to his near side and leave sufficient gap for preventing any mishap.
6. Even if the act of a passenger in resting his arm on the window of the bus in which he
travels may be regarded a negligent or a foolish act, to which aspect. I shall come later, it
cannot be held that the driver of the bus and the driver of the vehicle crossing the bus owe
no duty to such passengers. This habit of passengers is so common that even if it be
negligent or foolish it must enter into contemplation of a reasonable driver; for the
foresight of a reasonable man, on the basis of which cases of negligence have to be
solved, takes into account also common negligence in human behaviour. A reasonable
driver "will guard against the possible negligence of others when experience shows such
negligence to be common" and though "not bound to anticipate fully in all its forms", he
is not entitled to put out of consideration "the teachings of experience as to the form those
follies take:" (London Passenger Transport Board v. Upson 1949 AC 155 (HL) pp. 173 &
176). Judged from this standard it is clear that the driver of the bug in which the plaintiff
was travelling and the driver of the truck which crossed the bus both! owed a duty of care
for the safety of the plaintiff notwithstanding the fact that she was resting her arm on the
window of the bus and her elbow was projecting outside the bus.
7. I have not been referred to any Indian or English authority in which a duty of care may
have been recognised in favour of a Passenger who keeps his elbow out. But absence of a
53
direct precedent to cover the facts of the instant case does not imply that no duty situation
can be recognised in this case. As held in M. P. S. R. T. C. v. Mst Basantibai 1971
MPWR 517 when questions of this nature arise for the first time they have to be solved
on the well-known principle enunciated by Lord Atkin in Donoghue v. Stevenson 1932
AC 562.
8. "You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The
answer seems to be--persons who are so closely and directly affected by my act that I
ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question." (p. 580).
9. The question is whether the plaintiff has been able to make out a case of negligence
against the two drivers or any one of them. The fact that the plaintiff's elbow, which was
resting on a window of the bus, was inured by coming in contact with some part of the
truck itself shows that the two vehicles crossed each other leaving only a little gap in
between. The plaintiff was sitting in one of the seats in the fourth row and she has hardly
any idea as to how the accident occurred. The only persons who could give any reliable
information as to how the two vehicles came so close resulting in the accident are the two
drivers. The driver of the bus has entered the witness box, He is Moolchand (D. W. 1).
He said that the truck which was coming from the opposite direction was visible from a
furlong and that he book his vehicle to his near side at the time when the truck crossed.
According to this witness, the bus and the truck were both running, when they crossed
each other, at a speed of about 25 to 30 miles. He does not. however, state as to how
much width of the road he was covering while crossing the truck and whether he had left
enough space for the truck to cross. Jahil Ali (D. W. 2) is the conductor of the bus. At the
time when the accident happened he was issuing tickets to some passengers. He stated
that his vehicle, i. e. the bus, was on the side of the road and two of its wheels were in the
katcha Portion and the remaining two on the metalled portion of the road. This statement
of the witness obviously relates to the Position of the bus when it was stopped after the
accident. At the time when the accident happened he was busy in issuing tickets and he
could hardly have any idea as to how much width of the road was covered by the bus. All
that one can make out from the statement of these two witnesses is that the truck coming
from the opposite direction was visible from a distance and that the road was wide
enough for the two vehicles to cross leaving a reasonable gap to avoid any accident even
though the vehicles were moving at a speed of twenty-five or thirty miles. When the
vehicles came so close while crossing each other as to injure the elbow of the plaintiff, it
must be inferred in these circumstances that either the drivers or one of them was guilty
of negligence in coming too close while crossing each other. What were the factors that
led to the accident were in the special knowledge of the two drivers. The circumstances,
therefore, call for an explanation from them and if they fail to place the relevant facts
before the Court, adverse inference must be drawn against them.
54
10. "If an injured person shows that one or other or both of two persons inured him. but
cannot say which of them it was. then he is not defeated altogether. He can call on each
of them for an explanation." (P. 137) The defendants, when they are the best persons to
tell the story of the accident, cannot by withholding evidence defeat the plaintiff on the
abstract doctrine of burden of proof. If they do not disclose relevant information, adverse
inference must be drawn and the Court may hold that both were to blame. It would be
another matter if after all the available evidence is produced by the defendants the Court
is vet unable to decide as to whether it was the negligence of both or A's or B's that
caused the accident; in such a situation, which is possible only in exceptional cases, the
plaintiff may fail; (See Baker's case p. 1475 (Somervell. LJ).)
11. Now, let us apply these principles to the facts of the instant case. As already stated, the
two drivers were the best persons to give evidence as to the circumstances that led to the
accident and the plaintiff had no knowledge of these circumstances. The driver of the
truck remained ex parte and did not offer any evidence. The driver of the bus did enter
the witness box but he did not state the relevant facts. The two drivers have thus failed to
bring before the Court the circumstances relating to the accident. Presumption must,
therefore, be drawn against them and it must be held that both were liable in negligence
to the plaintiff.
12. The next question is whether the defendants have proved that the plaintiff was guilty of
contributory negligence. A defence of contributory negligence requires that the
defendants must prove that the plaintiff failed to take reasonable care of her own safety
which was a contributory factor to the accident which caused her damage: (Winfield on
Tort, 8th edition p. 107). The defendants' case on this point is that in resting her arm on
the window still the plaintiff failed to take reasonable care of her safety and this was a
contributory factor to the accident. I have already said that it is common practice for the
passengers who sit near a window to rest their arm on the window. There is no evidence
that the Passengers are cautioned not to do so. On the roads outside a town the traffic is
not heavy and there is usually ample space for the vehicles to pass each other without
coming too close and it is rare for an accident to happen in the manner it has happened in
the instant case. There is also no evidence that the truck while crossing the bus blew its
horn or that the plaintiff continued to rest her elbow in the window, although she had
knowledge that the truck was crossing the bus. Having regard to the speed at which the
two vehicles were moving, they must have crossed each other in a split second leaving no
time for the plaintiff to withdraw her hand after seeing the truck. In these circumstances. I
do not think that the plaintiff can be said to have failed to take reasonable care of her
safety in resting her arm on the window of the bus. After all "a reasonable man does not
mean a paragon of circumspection" and if most of the passengers behave in the manner
the plaintiff did, it would not be right to hold that a reasonable man would have behaved
in a different manner: (See A. C. Billings & Sons Ltd. v. Riden, 1958 AC 240 at p. 2551.
The learned counsel for the defendants has referred to us Foo Kok Food v. Yap Hai
Chwee. 1972 ACJ 385 a case decided by the High Court of Kuala Lumpur (Malavasia).
In that case It was held that while travelling in a car along a thoroughfare of the Federal
Capital where traffic is heavy a passenger ought to be conscious that it is extremely
dangerous to rest his arm on the door window. Two earlier cases decided by the same
55
High Court in 1940 were distinguished on the ground that there was tremendous increase
in the volume of traffic since then and the design of the motor vehicles had also been
changed. It was further pointed out that in the earlier cases the accident happened outside
the town where the traffic was not heavy. The considerations which prevailed in the
Malayasian case of Yap Hai Chwee are hot present in the case before us. The accident
here happened not in a crowded street but in the countryside where the traffic is not
heavy. The design of the passenger buses here still makes the window a natural rest for
the arm. For these reasons, the decision in the case of Yap Hai Chwee cannot be applied.
The facts of the instant case are nearer to the facts of the two earlier Malayasian cases
referred to in Yap Hai Chwee's case. I am, therefore, of opinion that the defendants have
failed to prove that the plaintiff was guilty of contributory negligence.
13. The defendants have not challenged the assessment of damages made by the trial Court.
The plaintiff is, therefore, entitled to recover as damages Rs. 23,238.70 She has already
been paid Rs. 2,000/- by the insurer of the bus and the amount to be decreed must be
reduced to that extent. The plaintiff will get a decree for recovery of Rs. 21.238.70
against all the defendants-respondents.
14. The appeal is allowed. The plaintiffs suit is decreed for a sum of Rs. 21,238.70 against
defendants 1, 2, 3 and 5 who are respondents 1 to 4 in this appeal. These defendants shall
bear their own costs and pay the costs of the plaintiff of both the Courts.
Raina, J.
15. I entirely agree with my learned brother that this appeal should be allowed on the terms
proposed by him in paragraph 15 and I also generally agree with the line of reasoning
adapted by him but I would like to add a few words of my own.
16. This case raises some important questions of law arising in an action based on
negligence. Plaintiff was travel-line in the Bus No. M. P. J. 1690 belonging to Madhva
Pradesh State Road Transport Corporation from Jabalpur to Chhin-dwara. At a distance
of 7 miles from Jabalpur on the Jabalpur-Nagpur road an accident took place while the
Bus crossed the truck No. M. P. J. 9310 owned by Bakhtawar Singh defendant No. 2.
coming from the opposite direction. It is clear that there was no collision because the
evidence shows that the bodies of the two vehicles did not come in contact with each
other. Plaintiff, however, sustained severe injuries to the elbow of her right hand on
account of an impact with the body of the truck. Learned counsel for both the sides
accepted this position. The Question for consideration is whether the defendants can be
adiudged liable in these circumstances.
17. This is not a case where a passenger has been injured while stretching his arm outside the
window of a moving vehicle. In that case the legal position might have been different. If
the plaintiff. had stretched out her hand outside the window she was bound to sustain
iniuries On her hand and fingers but from the medical evidence it is clear that the injury
56
was to the elbow and to no other part of the body. It can, therefore, be reasonably inferred
that the plaintiff got hurt by the passing truck while she was resting her elbow on the
window sill. The trial Court held the plaintiff responsible for the accident in these
circumstances and dismissed her claim. The view taken by him does not appear to be
correct.
18. The duty of a person who drives or rides a vehicle on the highway is to use reasonable
care to avoid causing damage to persons, vehicles or property of any kind on or adipining
the highway. Reasonable care in' this connection means the care which an ordinary
skilful driver or rider would have exercised under the circumstances. (Charles Worth on
Negligence, Fifth Edition page 810. paragraph 812).
19. It is a well-known rule of the road that when two vehicles are approaching each other
from opposite directions, each must go on the left for the purpose of allowing the other to
pass. Failure to observe this rule is prima facie evidence of negligence Vide paragraphs
812 and 816 ibid.
20. In extremely crowded areas of the town it is no doubt necessary for the vehicles to cross
or overtake other vehicles at very close quarters but if this is done slowly after cautioning
the passengers in the other vehicle by blowing horn, the driver of the vehicle may not be
ad-judged guilty of negligence if in spite of this some one gets hurt. Passengers travelling
in motor vehicles in crowded areas no doubt owe a responsibility to keep their limbs
within the motor vehicles but on long journeys it would be too much to expect a
passenger not to allow any part of his body to protrude at all bevond the body of the
vehicle. Resting of elbow on a window sill, as stated above, is extremely common even
for passengers of reasonable prudence and. therefore, the plaintiff cannot be held guilty
of contributory negligence.
21. Contributory negligence is an expression meaning negligence on the part of the plaintiff
materially contributing to the injury. It does not mean breach of any duty on the part of
the plaintiff. It means the failure by a person to use reasonable care for the safety of
himself or his property so that he becomes the author of his own wrong. (Charles Worth
on Negligence. Fifth Edition. Paragraph 1004, page 1003).
22. The standard of care in contributory negligence is what is reasonable in the circumstances
and this in most cases corresponds to the standard of care in negligence. A. C. Billings &
Sons Ltd. v. Riden, 1958 AC 240. Although contributory negligence does not depend on
a duty of care it does depend on foresee ability. Just as actionable negligence requires the
fore-seeability of harm to others. So contributory negligence requires the foresee ability
of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to
have foreseen that, if he did not act as a reasonably prudent man he might hurt himself, in
doing a particular act. (Vide Clerk & Lindsell on Torts. Thirteenth Edition, Page 984.
Contributory negligence, must involve a risk that is unreasonable under all the
circumstances and the conduct of the plaintiff is to be evaluated in its setting in the
circumstances of each case allowing the plaintiff to make assumptions that are
reasonable. The plaintiff may expect that the defendant will act as a reasonable man.
57
Reasonable expectations of safety are just as much a part of ordinary prudent conduct as
are expectations of danger. The scope of the risk engendered by the plaintiff's conduct
must not be assessed with undue refinement. It must be approached in a spirit of healthy
common-sense.
23. In State of Punjab v. Smt. Guranwanti, AIR 1960 Puni 490, the Puniab High Court dealt
with a case of a somewhat similar nature where a passenger travelling in a bus was
iniured while resting his elbow on the window. The following observations in paragraph
11 of that case are pertinent.
24. "It is well known that often passengers travel with their elbows resting on the window of
the car. There is no prohibition against it. The plaintiff at that time of the morning
considering the state of traffic cannot be said to have failed to use reasonable care for her
safety by resting her elbow on the window."
25. A similar view was expressed by Rajasthan High Court in Roormal v.Jankilal ILR (1962)
12 Ral 128. In that case the plaintiff was held to be not guilty of non-excusable
negligence when he got injured while keeping his hand slightly outside the window of a
moving bus at the time of the accident It would be pertinent here to refer to the following
statement of law in Halsbury's Laws of England 3rd Edition. 28 Volume (1959) at page
90 which was relied upon in that case.
26. Bearing in mind the principles referred to above it is clear that the plaintiff cannot be held
to be guilty of contributory negligence in the circumstances of this case. It is true that in
crowded streets of big towns the passengers, who are adult are expected to keep their
limbs within the carriage and contributory negligence may be inferred in certain
circumstances if they fail to take this safety measure but here we are dealing with a case
where the plaintiff was iniured while moving on a highway outside the limits of the town.
In such a case even a man of ordinary prudence would rest his elbow on the window sill
and he cannot be expected to foresee any harm to himself in doing so. The learned trial
Judge was, therefore, in error in holding that the plaintiff was negligent in resting her
elbow on the window sill and this was the proximate cause of the accident.
27. The accident in this case must necessarily be presumed to be as a result of the negligence
of the drivers of either or both the vehicles in question. In a case like this, in my view, the
legal maxim res ipsa loquitur can usefully be applied. This doctrine is usually employed
in action for injuries due to negligence where patent facts concerning the case are by
themselves sufficient to establish negligence. The literal meaning of the maxim is that the
thing speaks for itself. The doctrine does not apply where the cause of accident is known.
The res can only speak so as to throw the inference of fault upon the defendants in some
cases where the act of the defendent is unexplained. The maxim does not mean that
negligence is to be inferred merely because someone is hurt. It means that the
circumstances are so to speak eloauent of the negligence of somebody which brought
about the state of things which are complained of.
58
28. In M. P. State Road Transport Corporation v. Munnabai, 19GS Jab LJ 153 It was held
that the applicability of the doctrine is merely a rule of evidence relating to burden of
proof. Thus in parti-cular cases the facts which are established may be shown clearly
suggestive of the Inference that unless the defendant is able to satisfy the Court that
accident was not attributable to his negligence, the finding would 20 against him.
29. In this case too it is clear that the accident was due to the fact that two motor vehicles
crossed each other at a very close range so as to cause hurt to the appellant. Now an
accident of this nature can be due to the negligence of the driver of either vehicle or of
both. While crossing, the usual practice of a careful driver is to move his vehicle to the
left leaving sufficient space for the other vehicle to pass at a safe distance. In the instant
case there is no map of the spot and. therefore, It is not possible to sav which of the
drivers was at fault. Moolchand (D. W. 1), the driver of the bus in which the appellant
was travelling entered the witness box but did not say anything which may suggest that
the driver of the truck was at fault. The testimony of the conductor is not of any value for
the purpose of determining as to which of the drivers was negligent because it appears
from his evidence that immediately before the accident he was busy in issuine tickets. His
attention was drawn towards the vehicle only after the accident. He no doubt says that
two of the wheels of the bus were in the Kuchcha and two on the Pucca portion of the
road but this by itself is not sufficient to show that there was no neglisence on the part of
the bus-driver unless we know as to what extent the bus had moved into Kuchcha portion,
as the metalled portion of the road was too narrow being only 12 feet wide.
30. As for the truck-driver, he has not entered the witness box to explain the circumstances of
the accident.As neither the bus-driver nor the truck-driver has placed any material before
this Court to come to a conclusion that there was no negligence on their part the
conclusion is irresistible that both were negligent. It appears that the road being narrow
both of them were reluctant to leave the road sufficiently with the result that they crossed
each other at a very close range with the result that the appellant who was resting her
elbow on the window sill got injured.
31. My learned brother has cited two English decisions namely. Baker v. Market Harborough
Industrial Cooperative Society Ltd (1953) 1 WLR 1472 and Roe v. Ministry of Health
(19541 2 All ER 131 wherein it was held that when the defendants are the best persons to
tell the story of the accident, they cannot by withholding evidence defeat the plaintiff on
the abstract doctrine of burden of proof. The principle laid down in these cases appears to
be a salutary one and must be accepted. Where the circumstances of the accident point to
the negligence of the defendants who are the best persons to say how it occurred and they
on their part do not place any materieal before the Court to absolve them of the
responsibility for the act, it must be held that both are negligent. I, therefore, agree with
my learned brother (Singh J.) that the drivers of both the vehicles must be held
responsible for the accident and the appeal must be allowed on the terms proposed by
him.
59
MUNICIPAL CORPORATION OF DELHI v. SUBHAGWANTI &

OTHERS
Municipal Corporation of Delhi: Appellant
v.
Subhagwanti and Others: Respondent
1966 AIR 1750
Ramaswami, J.
1. The Judgment of the Court was delivered by Ramaswami, J. These appeals arise out of 3
suits for damages filed by the heirs of three persons, namely Shri Ram Parkash, Shrimati
Panni Devi and Sant Gopi Chand who died as a result of the collapse of the Clock Tower
situated opposite the Town Hall in the main Bazar of Chandi Chowk, Delhi belonging to
the appellant-Corporation, formerly the Municipal Committee of Delhi.
2. Suit No. 5 52 of 1952 was filed by the heirs of Shri Ram Parkash, suit No. 930 of 1951
was filed by the heirs of Smt. Panni Devi and suit No. 20 of 1952 was filed by Kuldip Raj
whose father, Gopi Chand was killed by the fall of the Clock Tower. All the suits were
tried by the Court of Subordinate Judge, 1st Class, Delhi who disposed of all the suits by
a common judgment dated July 9, 1953. The Subordinate Judge granted a decree for a
sum of Rs. 25,000 to Shrimati Subhagwanti and other heirs of Ram Parkash in suit No.
552 of 1952, a sum of Rs. 15,000 to the heirs of Shrimati Panni Devi in suit No. 930 of
1951 and a sum of Rs. 20,000 to Kuldip Raj in suit No. 20 of 1952. It was held by the
trial court that it was the duty of the Municipal Committee to take proper care of
buildings, so that they should not prove a source of danger to persons using the highway
as a matter of right. The trial court rejected the plea of the Municipal Committee that in
the case of latent defects it could not be held liable and the Municipal Committee, as the
owner of the buildings abutting on the highway, was liable in negligence if it did not take
proper care to maintain the buildings in a safe condition. It was submitted against the
Municipal Committee before the trial court that, apart from superficial examination of the
Clock Tower from time to time by the Municipal Engineer, no examination was ever
made with a view to seeing if there were any latent defects making it unsafe. Aggrieved
by the decree of the trial court, the Municipal Committee filed appeals in the High Court
in all the three suits. On November 27, 1959 the High Court disposed of all the appeals
by a common judgment. The decree for Rs. 25,000 in suit No. 552 of 1952 was
maintained, the amount of Rs. 15,000 awarded in suit No. 930 of 1951 in favour of
Munshi Lal and others was reduced to Rs. 7,200, and the amount of Rs. 20,000 awarded
in suit No. 20 of 1952 was reduced to Rs. 9,000. The High Court held that the principle of
res ipsa loquitur applied to the case. The High Court considered that it was the duty of the
Municipal Committee to carry out periodical examination for the purpose of determining
whether deterioration had taken place in the structure and whether any precaution was
60
necessary to strengthen the building. The High Court mainly relied on the evidence of
Shri B. S. Puri, Retired Chief Engineer, P.W.D., Government of India who was invited by
the Municipal Committee to inspect the Clock Tower after its collapse and who was
produced by them as their witness. The facts disclosed in his statement and that of Mr.
Chakravarty, the Municipal Engineer were that the building was 80 years old and the life
of the structure of the top storey, having regard to the type of mortar used, could be only
40 to 45 years and the middle storey could be saved for another 10 years. The High Court
also took into consideration the statement of Mr. Puri to the effect that the collapse of the
Clock Tower was due to thrust of the arches on the top portion. Mr. Puri was of the
opinion that if an expert had examined this building specifically for the purpose he might
have found out that it was likely to fall. The witness further disclosed that when he
inspected the building after the collapse and took the mortar in his hands he found that it
had deteriorated to such an extent that it was reduced to powder without any cementing
properties. These appeals are brought by the Municipal Corporation of Delhi against the
decree of the High Court dated November 27, 1959 in First Appeals No. 69-D of 1953,
No. 71-D of 1953 and No. 85-D of 1953.
3. The main question presented for determination in these appeals is whether the appellant
was negligent in looking after and maintaining the Clock Tower and was liable to pay
damages for the death of the persons resulting from its fall. It was contended, in the first
place, by Mr. Bishen Narain on behalf of the appellant that the High Court was wrong in
applying the doctrine of res ipsa loquitur to this case. It was argued that the fall of the
Clock Tower was due to an inevitable accident which could not have been prevented by
the exercise of reasonable care or caution. It was also submitted that there was nothing in
the appearance of the Clock Tower which should have put the appellant on notice with
regard to the probability of danger. We are unable to accept the argument of the appellant
as correct. It is true that the normal rule is that it is for the plaintiff to prove negligence
and not for the defendant to disprove it. But there is an exception to this rule which
applies where the circumstances surrounding the thing which causes the damage are at
the material time exclusively under the control or management of the defendant or his
servant and the happening is such as does not occur in the ordinary course of things
without negligence on the defendant's part. The principle has been clearly stated in
Halsbury's Laws of England, 2nd Edn., Vol. 23, at p. 671 as follows: "An exception to
the general rule that the burden of proof of the alleged negligence is in the first instance
on the plaintiff occurs wherever the facts already established are such that the proper and
natural inference immediately arising from them is that the injury complained of was
caused by the defendant'snegligence, or where the event charged as negligence tells its
own story' of negligence on the part of the defendant, the story so told being clear and
unambiguous. To these cases the maxim res ipsa loquitur applies. Where the doctrine
applies, a presumption of fault is raised against the defendant, which, if he is to succeed
in his defence, must be overcome by contrary evidence, the burden on the defendant
being to show how the act complained of could reasonably happen without negligence on
his part." In our opinion, the doctrine of res ipsa loquitur applies in the circumstances of
the present case. It has been found that the Clock Tower was exclusively under the
ownership and control of the appellant or its servants. It has also been found by the High
Court that the Clock Tower was 80 years old and the normal life of the structure of the
61
top storey of the building, having regard to the kind of mortar used, could be only 40 or
45 years. There is also evidence of the Chief Engineer that the collapse was due to thrust
of the arches on the top portion and the mortar was deteriorated to such an extent that it
was reduced to powder without any cementing properties. It is also not the case of the
appellant that there was any earthquake or storm or any other natural event which was
unforeseen and which could have been the cause of the fall of the Clock Tower. In these
circumstances, the mere fact that there was fall of the Clock Tower tells its own story in
raising an inference of negligence so as to establish a prima facie case against the
appellant.
4. We shall proceed to consider the main question involved in this case namely, whether the
appellant, as owner of the Clock Tower abutting on the highway, is bound to maintain it
in proper state of repairs so as not to cause any injury to any member of the public using
the highway and whether the appellant is liable whether the defect is patent or latent. On
behalf of the 'appellant Mr. Bishen Narain put forward the argument that there were no
superficial signs on the structure, which might have given a warning to the appellant that
the Clock Tower was likely to fall. It is contended that since the defects which led to the
collapse of the Clock Tower were latent the appellant could not be held guilty of
negligence. It is admitted, in this case, that the Clock Tower was built about 80 years ago
and the evidence of the Chief Engineer is that the safe time-limit of existence of the
building which collapsed was 40 or 45 years. In view of the fact that the building had
passed its normal age at which the mortar could be expected to deteriorate it was the duty
of the appellant to carry out careful and periodical inspection for the purpose of
determining whether, in fact, deterioration had taken placed whether any precautions
were necessary to strengthen the building. The finding of the High Court is that there is
no evidence worth the name to show that any such inspections were carried out on behalf
of the appellant,and, in fact, if any inspections were carried out, they were of casual and
perfunctory nature. The legal position is that there is a special obligation on the owner of
adjoing premises for the safety of the structures which he keeps besides the highway. If
these structures fall into disrepair so as to be of potential danger to the passers-by or to be
a nuisance, the owner is liable to anyone using the highway who is injured by reason of
the disrepair. In such a case it is no defence for the owner to prove that he neither knew
nor ought to have known of the danger. In other words, the owner is legally responsible
irrespective of whether the damage is caused by a patent or a latent defect. In Wringe v.
Cohen (1) the plaintiff was the owner of a lock-up shop in Proctor Place, Sheffield, and
the defendant Cohen was the owner of the adjoining house. The defendant had let his
premises to a tenant who had occupied them for about two years. It appears that the gable
end of the defendant's house collapsed owing to a storm, and fell through the roof of the
plaintiff's shop. There was evidence that the wall at the gable end of the defendant's
house had, owing to want of repair, become a nuisance, i.e., a danger to passers by and
adjoining owners. It was held by the Court of Appeals that the defendant was liable for
negligence and that if owing to want of repairs premises on a highway become dangerous
and, therefore, a nuisance and a passer-by or an adjoining owner suffers damage by the
collapse the occupier or the owner if he has undertaken the duty of repair, is answerable
(1) [1940] 1 K.B. 229.
62
5. The ratio of this decision was applied by the Court of Appeals a subsequent case in Mint
v. Good (1) and also in Walsh v. Holst and Co. Ltd. and Ors. (2) In our opinion, the same
principle is applicable in Indian law. Applying the principle to the present case it is
manifest that the appellant is guilty of negligence because of the potential danger of the
Clock Tower maintained by it having not been subjected to a careful and systematic
inspection which it was the duty of the appellant to carry out.
6. The last question is regarding the quantum of damages which requires separate
consideration in each case. Section I of the Fatal Accidents Act, 1855 (Act XIII of 1855)
reads:" Whenever the death of a person shall be caused by wrongful act, neglect or
default, and the act, neglect or default is such as would (if death had not ensued) have
entitled the party injured to maintain an action and recover damages in respect thereof,
the party who would have been liable if death had not ensued shall be liable to an action
or suit for damages, notwithstanding the death of the person injured, and although the
death shall have been caused under such circumstances as amount in law to felony or
other crime.
7. Every such action or suit shall be for the benefit of the wife, husband, parent and child, if
any of the person whose death shall have been so caused, and shall be brought by and in
the name of the executor, administrator or representative of the person deceased; and in
every such action the court (1) (19511 1 K.B. 517.(2) [1958] 1 W.L.R. 800 may give such
damages as it may think proportioned to the loss resulting from such death to the parties
respectively, for whom and for whose benefit such action shall be brought; and the
amount so recovered, after deducting all costs and expenses, including the costs. not
recovered from the defendant, shall be divided amongst the before mentioned parties, or
any of them, in such shares as the Court by its judgment or decree shall direct."
8. This section is in substance a reproduction of the English Fatal Accidents Acts, 9 and 10
Vict. Ch. 93, known as the Lord Campbell's Acts. The scope of the corresponding
provisions of the English Fatal Accidents Acts has been discussed by the House of Lords
in Davies v. Powell Duffryn Associated Collieries Ltd. (1) At page 617 of the Report
Lord Wright has stated the legal position as follows: "It is a hard matter of pounds,
shillings and pence, subject to the element of reasonable future probabilities. The starting
point is the amount of wages which the deceased was earning, the ascertainment of which
to some extent may depend upon the regularity of his employment. Then there is an
estimate of how much was required or expended for his own personal and living
expenses. The balance will give a datum or basic figure which will generally be turned
into a lump sum by taking a certain number of years' purchase. That sum, however, has to
be taxed down by having due regard to uncertainties, for instance, that the widow might
have again married and thus ceased to be dependent, and other like matters of speculation
and doubt."
9. The same principle has been reiterated by Viscount Simon in Nance v. British Columbia
Electric Railway Company Ltd. (2) In the present case of Subhagwanti etc. there is
evidence that Ram Parkash deceased was 30 years old at the time of the accident, his
widow Subhagwanti being aged about 28 and his son 14 and daughters 12 and 2 years
63
old. The evidence adduced regarding the income of Ram Parkash and the amount of loss
caused to his widow and children was not satisfactory but the High Court considered that
the widow and children must have been receiving at least a monthly sum of Rs. 150 for
their subsistence and for the education of the children from the deceased Ram Parkash.
The income was capitalised for a period of 15 years and the amount of Rs. 27,000 which
was arrived at was more than what the trial court had awarded. The High Court
accordingly saw no reason for reducing the amount of damages awarded by the trial
court. In the case of Tek Chand and his four children, the High Court has estimated that
the pecuniary loss caused by the death of his wife should be taken to be Rs. 40 p.m. and if
a period of 15 years is taken for the purpose of calculating the total sum, the amount will
come to Rs. 7,200. Lastly, in the case of Kuldip Raj, the High Court has calculated the
pecuniary loss at the rate of Rs. 50 pm. and the amount of damages calculated for a
period of 15 years would come to Rs. 9,000. In our opinion, the High Court has applied
the correct principle in estimation of the damages in all the three appeals and learned
Counsel has been unable to show that the judgment of the High Court on this aspect of
the case is vitiated for any reason. For the reasons expressed, we hold that there is no
merit in these appeals which are accordingly dismissed with costs.
64
JASBIR KAUR AND ANOTHER v. STATE OF PUNJAB AND

OTHERS
Jasbir Kaur: Appellant
v.
State of Punjab: Respondent
AIR 1995 P H 278
R Sethi, S Sudhalkar, JJ
1. This case is a good illustration on duty of hospitals to take care towards its patients. The
tragic facts of the case and barbaric attitude of the respondent-authorities reminds one of
the premitive medieval age when man was treated like an animal and deprived of the
virtues of a civilised society. At this stage of the winding up of the twentieth century and
when we are at the door steps of the twenty-first century, the heads of civilised society
would bow in shame to know about the facts of the case and the treatment meted out to a
newly born child who is alleged to have been taken away by a cat in a Government
owned and managed hospital. The woeful story has been narrated by the parents of the
unfortunate child who have in desparation prayed for an inquiry through the Central
Bureau of Investigation and in frustration have prayed for the grant of compensation or
rehabilitation and upbringing of the said child. It is unfortunate that despite admitting the
facts narrated in the petition, the respondents have chosen to resist this petition on
frivolous grounds and false pretexts.
2. The petitioner Jasbir Kaur, mother of the unfortunate child is shown to have been
admitted in Shri Guru Teg Bahadur Hospital, Amritsar, on 24th June, 1993, allegedly in a
serious condition of leakage. She was subjected to Sonography and after caesarean
operation on 25th June, 1993, a healthy normal male child is stated to have been born to
her at 6.00 p.m. The operation is stated to have been conducted by Dr. Harinder Kaur. It
is submitted that no arrangements are made for any cradle for separately keeping the
children born through caesarean operation for the people belonging to lower strata,
termed as poor. The parents of the child and the relations were told that the mother and
child should not sleep together on one bed because of the fear of infection. Under these
circumstances, the child was kept with the relative of the petitioners on the intervening
night of 25th-26th June, 1993. The electric light is alleged to have gone off suddenly in
the maternity ward and the attendant sleeping with the child found the child missing from
65
her side. Hue and cry was raised and search was made in the hospital premises, resulting
in the discovery of the child in a profusely bleeding condition, with one eye totally
gouged out along with the eyeball. The child in such a condition was found near the wash
basin of the bathroom. The matter was brought to the notice of the authorities for holding
an inquiry as the parents genuinely and bonafidely believed that their child had been
replaced with a damaged eye child. As no action was taken, Smt. Vimla Dang, M.L.A.,
from Amritsar, was approached who thereafter made inquiries and wrote letters to the
authorities for taking action in the matter. Despite registration and investigation of the
case, no action was taken by any of the authorities, of the respondent-State, forcing the
petitioners to approach this Court for the grant of relief by handing over the case to the
Central Bureau of Investigation, an independent agency, for investigating the case in
which the child of the petitioners was allegedly replaced or exchanged with another child
or to ascertain the circumstances in which the child is stated to have been lifted by a cat
and his one eyeball was gouged out. It was further prayed that the hospital authorities be
directed to make proper arrangements and ensure proper working in the hospital and not
to play with the lives of the human children by exposing them to be wasted at the hands
of the animals like cats. It was alternatively prayed that the petitioners be awarded
compensation to the extent of rupees ten lakhs for negligence, callousness and
carelessness of the respondents.
3. In reply, it is submitted that a preliminary inquiry was conducted in which it is stated to

have been established that incident had occurred due to the negligence of the family
members of the newly born child. Even after recording of F.I.R. No. 112 dated 8th July,
1993, the matter was investigated and it was found that the allegations made were false
and frivolous. It is submitted that the Inquiry Officers appointed in the case have totally
ruled out the possibility of any of the circumstances in which the child of the petitioners
was allegedly replaced or exchanged with another injured child by the doctor/staff of Shri
Guru Teg Bahadur Hospital, Amritsar. The Inquiry Officers also ruled out the possibility
of taking out the eye of the newly born child for transplantation.
4. The petitioners are stated to be not entitled to any compensation in view of the alleged
admission made by them in their statements recorded on 26th June, 1993. The admission
of the petitioner mother in the hospital and the birth of a normal healthy newly born child
is admitted. It is submitted that at the time of his birth the child did not have any injury on
any part of his body and no negligence or callousness can be attributed to the respondents
in treating the patient in the way as alleged in the writ petition. It is submitted that the
patients are admitted and treated in the hospital irrespective of their caste, creed and
economic status. It is, however, admitted that the electricity went off suddenly during the
night intervening 25th-26th June, 1993. It is, further, submitted that at that time the
66
grandmother of the child went outside to fetch a hand fan from her husband leaving the
child with the sister-in-law of Jasbir Kaur, petitioner. At that time, the staff nurse on duty
heard the cries of a child from the adjacent bathroom where she and class IV employees
on duty with the help of the relatives of petitioner No. 1 and other patients searched for
the child with the help of a torch and found the child injured in the said bathroom. It is
contended that no fundamental or legal right of the petitioners has been infringed as
claimed in the writ petition and the same is liable to be dismissed.
5. We have heard the learned counsel for the parties and perused the records.The learned
counsel appearing for the petitioners pleaded before us the helplessness of the petitioners
in pursuing the matter any further by getting an inquiry conducted through the Central
Bureau of Investigation. The petitioners, on account of their poverty, argued the learned
counsel, apprehend that further proceedings or inquiry in the case may not deprive them
even of the child who is being brought up by them at present. It is further submitted that
the handicapped child may ultimately grow with the impression of being a stranger child
to the family if the patitioners fail to get any child in exchange. It is submitted that on
account of their social status, poverty and the delay caused in the case, the petitioners
may not be in a position to substantiate the allegations so far as the exchange or
replacement of the child is concerned. Relief for banding over the case to the Central
Bureau to Investigation for further investigation is, therefore, neither insisted nor ganted.
6. .The admission of petitioner No. I in the Shri Teg Bahadur Hospital, Amritsar, and the
delivery of a normal healthy male child is not disputed by the respondents. The child
being injured by a cat in the hospital premises is also admitted. The only ground of
resisting the prayer of the petitioner for compensation is that the injury caused to the
infant child is attributable to the negligence and carelesness of the attendants of the
patient and not to the employees of the respondents. Shri Guru Teg Bahadur Hospital,
Amritsar, is admittedly a Government owned and managed hospital. The protection,
safety and provision for treatment in the said hospital is the responsibility of the
respondent State for which none else can be blamed. It is not disputed that none else than
the respondents are responsible for the safety of the patient and the newly born child in
the hospital. The prevalent system in the hopital and the law cast a duty upon the
respondents to properly maintain and provide medical facilities to the mother and the
infant child. The failure on the part of the respondents to properly maintain and provide
medical facilities makes liable to compensate, if an injury not connecting with the
treatment is caused either to the patient or to the newly born child. Such injury in the
Government owned and managed hospital would, in law, be attributable to the negligence
of the respondents and such a presumption could be rebutted by producing positive
evidence that they had been maintaining the hospital and its services in accordance with
67
the standards accepted and minimum safeguards provided. As and when it is proved that
a citizen received such an injury in a Government owned and managed hospital, there is a
presumption of fact that there had been negligence of proper care and caution on the part
of the hospital entrusted with the job of providing medical facilities and ensuring safety
to the lives of the patients. The maxim res ipsa loquitur is a principle which aids the
Court is deciding as to the stage at which the onus shifts from one side to the other, where
a particular state of affair is shown to be under the management of a department or their
servants and the accident takes place which in the ordinary course of things would not
happen, it affords reasonable evidence in the absence of explanation by the respondents
that the accident arose for want of care. Winfield in his famous Treatise on Tort, has
mentioned two requirement to attract the above principles. They are (i) that the 'thing'
causing the damage be under the control of the defendant or his servants, and (ii) that the
accident must be such as would not in the ordinary course of things have happened
without negligence. This principle has been approved and recognised by the Supreme
Court of India in Sayad Akbar v. State of Karnataka, 1980 Acc CJ 38 : (AIR 1979 SC
1848) (Para 19) wherein it was held: "The rule of res ipsa loquitur in reality belongs to
the law of Torts. Where negligence is in issue, the peculiar circumstances constituting the
event or accident, in a particular case, may themselves proclaim in concordant, clear and
unambigous voices the negligence of somebody as the cause of the event or accident. It is
to such cases that the maxim res ipsa loquitur may apply, if the cause of the accident is
unknown and no reasonable explanation as to the cause is coming forth from the
defendant. The event or accident must be of a kind which does not happen in the ordinary
course of things, if those who have the management and control use due care. Further the
event which caused the accident must be within the defendants' control. The reasons for
this second requirement is that where the defendant had control of the thing which caused
the injury, he is in a better position than the plaintiff to explain how the accident
occurred."
7. Testing on the touchstone of the principle laid down by the renowned jurists of English
Courts and the Supreme Court of India and on admitted facts it is established that the
child was taken away by the cat and was recovered from the bathroom. The taking away
of the child and the consequent injury is attributatble only to the negligence of the staff
members of the hospital who were under a moral and legal obligation to provide security
to the patient admitted therein and their newly born children.
8. Article 21 of the Constitution of India provides that no person shall be deprived of his life
and property except according to the procedure established by law. The term "life" used
in Article 21 is not only restricted to the mere nominal existence but extends to the
inhibition against its deprivation to all those limits and faculties by which life is enjoyed.
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This Article is wide and of far reaching consequences. As and when life in any form or to
any extent Is taken away or endangered by any functionary of the State, a duty is cast
upon the State representing the will of the people to compensate the victim by granting
adequate compensation. The monarchial rule has to be distinguished from democratic set
up and the State cannot shirk its responsibility to protect the life, liberty and property of
the citizens. The maintenance of law and order and providing adequate facilities in the
Government Hospitals is the responsibility of the Government who cannot abdicate its
functions and allow the life and liberty of citizens to be in jeopardy on technical pleas and
false pretexts as projected in the reply of the respondents. We are, therefore, convinced
that the respondent State is liable to compensate the petitioners for the damage done to
their child on account of the negligence of the staff of the hospital owned and managed
by the respondent State.
9. Even though the petitioners have claimed a sum of rupees ten lakhs as compensation, we
are of the opinion that though the damage caused to the child is of a permanent nature,
yet the interests of justice would be served if a reasonable amount is awarded as
compensation for the up-bringing and education of the said child for his ultimately
respectable settlement in the society. In our opinion, the award of rupees one lakh as
damages would meet the ends of justice. We hold the child entitled to the payment of
rupees one takh as compensation for the injury caused to his person. The aforesaid
amount of compensation of rupees one lakh shall be paid by the respondents to the
petitioners who would deposit the aforesaid amount in some nationalised bank in the
form of a fixed deposit receipt payable to the child on his attaining the age of majority.
The interest payable on the aforesaid amount shall periodically be paid to both the
petitioners for the maintenance of the child, provided they live together. If the petitioners
ever decide to dissolve their marriage, appropriate directions shall be obtained from the
Court for the disbursement of the amount of interest in favour of the child. With the
above directions, this petition is disposed of.
69
RYLANDS v. FLETCHER
Rylands: Appellant
v.
Fletcher: Respondent
1868 LR HL 330
Lord Chancellor Cairns
1. In this case the Plaintiff is the occupier of a mine and works under a close of land. The
Defendants are the owners of a mill in his neighborhood, and they proposed to make a
reservoir for the purpose of keeping and storing water to be used about their mill upon
another close of land, which, for the purposes of this case, may be taken as being
adjoining to the close of the Plaintiff, although, in point of fact, some intervening land lay
between the two. Underneath the close of land of the Defendants on which they proposed
to construct their reservoir there were certain old and disused mining passages and works.
There were five vertical shafts, and some horizontal shafts communicating with them.
The vertical shafts had been filled up with soil and rubbish, and it does not appear that
any person was aware of the existence either of the vertical shafts or of the horizontal
works communicating with them. In the course of the working by the Plaintiff of his
mine, he had gradually worked through the seams of coal underneath the close, and had
come into contact with the old and disused works underneath the close of the Defendants.
In that state of things the reservoir of the Defendants was constructed. It was constructed
by them through the agency and inspection of an engineer and contractor.
2. Personally, the defendants appear to have taken no part in the works, or to have been
aware of any want of security connected with them. As regards the engineer and the
contractor, we must take it from the case that they did not exercise, as far as they were
concerned, that reasonable care and caution which they might have exercised, taking
notice, as they appear to have taken notice, of the vertical shafts filled up in the manner
which have been mentioned. However, when the reservoir was constructed, and filled, or
partly filled, with water, the weight of the water bearing upon the disused and imperfectly
filled-up vertical shafts, broke through those shafts. The water passed down them and
into the horizontal workings, and from the horizontal workings under the close of the
Defendants, it passed on into the workings under the close of the Plaintiff, and flooded
his mine, causing considerable damage, for which this action was brought.
3. The Court of Exchequer, when the special case stating the facts to which have been
referred, was argued, was of opinion that the Plaintiff had established no cause of action.
The Court of Exchequer Chamber, before which an appeal from this judgment was
argued, was of a contrary opinion, and the Judges there unanimously arrived at the
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conclusion that there was a cause of action, and that the Plaintiff was entitled to damages.
The principles on which this case must be determined appear to be extremely simple. The
Defendants, treating them as the owners or occupiers of the close on which the reservoir
was constructed, might lawfully have used that close for any purpose for which it might
in the ordinary course of the enjoyment of land be used; and if, in what I may term the
natural user of that land, there had been any accumulation of water, either on the surface
or underground, and if, by the operation of the laws of nature, that accumulation of water
had passed off into the close occupied by the Plaintiff, the Plaintiff could not have
complained that that result had taken place. If he had desired to guard himself against it,
it would have lain upon him to have done so, by leaving, or by interposing, some barrier
between his close and the close of the Defendants in order to have prevented that
operation of the laws of nature. . . . On the other hand if the Defendants, not stopping at
the natural use of their close, had desired to use it for any purpose which may be termed a
non-natural use, for the purpose of introducing into the close that which in its natural
condition was not in or upon it, for the purpose of introducing water either above or
below ground in quantities and in a manner not the result of any work or operation on or
under the land,--and if in consequence of their doing so, or in consequence of any
imperfection in the mode of their doing so, the water came to escape and to pass off into
the close of the Plaintiff, then it appears that which the Defendants were doing they were
doing at their own peril; and, if in the course of their doing it, the evil arose, the evil,
namely, of the escape of the water and its passing away to the close of the Plaintiff and
injuring the Plaintiff, then for the consequence of that, in my opinion, the Defendants
would be liable.
4. These simple principles, if they are well founded, as it appears they are, really dispose of
this case. The same result is arrived at on the principles referred to by Mr. Justice
Blackburn in his judgment, in the Court of Exchequer Chamber, where he states the
opinion of that Court as to the law in these words:"We think that the true rule of law is,
that the person who, for his own purposes, brings on his land and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his peril; and if he does not
do so, is prim facie answerable for all the damage which is the natural consequence of
its escape. He can excuse himself by showing that the escape was owing to the Plaintiff's
default; or, perhaps, that the escape was the consequence of vis major, or the act of God;
but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be
sufficient.
5. The general rule, as above stated, seems on principle just. The person whose grass or corn
is eaten down by the escaping cattle of his neighbor, or whose mine is flooded by the
water from his neighbors reservoir, or whose cellar is invaded by the filth of his
neighbors privy, or whose habitation is made unhealthy by the fumes and noisome
vapors of his neighbors alkali works, is damnified without any fault of his own; and it
seems but reasonable and just that the neighbor who has brought something on his own
property (which was not naturally there), harmless to others so long as it is confined to
his own property, but which he knows will be mischievous if it gets on his neighbors,
should be obliged to make good the damage which ensues if he does not succeed in
confining it to his own property.
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6. But for his act in bringing it there no mischief could have accrued, and it seems but just
that he should at his peril keep it there, so that no mischief may accrue, or answer for the
natural and anticipated consequence. And upon authority this we think is established to
be the law, whether the things so brought be beasts, or water, or filth, or stenches."
7. My Lords, in that opinion, I must say I entirely concur. Therefore, I have to move your
Lordships that the judgment of the Court of Exchequer Chamber be affirmed, and that the
present appeal be dismissed with costs.
8. Lord Cranworth: I concur with my noble and learned friend in thinking that the rule of
law was correctly stated by Mr. Justice Blackburn in delivering the opinion of the
Exchequer Chamber. If a person brings, or accumulates, on his land anything which, if it
should escape, may cause damage to his neighbor, he does so at his peril. If it does
escape, and cause damage, he is responsible, however careful he may have been, and
whatever precautions he may have taken to prevent the damage.
9. In considering whether a Defendant is liable to a Plaintiff for damage which the Plaintiff
may have sustained, the question in general is not whether the Defendant has acted with
due care and caution, but whether his acts have occasioned the damage. . . . And the
doctrine is founded on good sense. For when one person, in managing his own affairs,
causes, however innocently, damage to another, it is obviously only just that he should be
the party to suffer. He is bound sic uti suo ut non laedat alienum. This is the principle of
law applicable to cases like the present, and I do not discover in the authorities which
were cited anything conflicting with it. The doctrine appears to be well illustrated by the
two modern cases in the Court of Common Pleas. . . . I allude to the two cases of Smith v.
Kenrick, and Baird v. Williamson. In the former the owner of a coal mine on the higher
level worked out the whole of his coal, leaving no barrier between his mine and the mine
on the lower level, so that the water percolating through the upper mine flowed into the
lower mine, and obstructed the owner of it in getting his coal. It was held that the owner
of the lower mine had no ground of complaint. The Defendant, the owner of the upper
mine, had a right to remove all his coal. The damage sustained by the Plaintiff was
occasioned by the natural flow or percolation of water from the upper strata. There was
no obligation on the Defendant to protect the Plaintiff against this. It was his business to
erect or leave a sufficient barrier to keep out the water, or to adopt proper means for so
conducting the water as that it should not impede him in his workings. The water, in that
case, was only left by the Defendant to flow in its natural course. But in the latter case of
Baird v. Williamson, the Defendant, the owner of the upper mine, did not merely suffer
the water to flow through his mine without leaving a barrier between it and the mine
below, but in order to work his own mine beneficially he pumped up quantities of water
which passed into the Plaintiff's mine in addition to that which would have naturally
reached it, and so occasioned him damage. Though this was done without negligence, and
in the due working of his own mine, yet he was held to be responsible for the damage so
occasioned. It was in consequence of his act, whether skilfully or unskillfully performed,
that the Plaintiff had been damaged, and he was therefore held liable for the
consequences. The damage in the former case may be treated as having arisen from the
72
act of God; in the latter, from the act of the Defendant. Applying the principle of these
decisions to the case now before the House, I come without hesitation to the conclusion
that the judgment of the Exchequer Chamber was right. The Plaintiff had a right to work
his coal through the lands of Mr. Whitehead, and up to the old workings. If water
naturally rising in the Defendants' land (we may treat the land as the land of the
Defendants for the purpose of this case) had by percolation found its way down to the
Plaintiff's mine through the old workings, and so had impeded his operations, that would
not have afforded him any ground of complaint. Even if all the old workings had been
made by the Plaintiff, he would have done no more than he was entitled to do; for,
according to the principle acted on in Smith v. Kenrick, the person working the mine,
under the close in which the reservoir was made, had a right to win and carry away all the
coal without leaving any wall or barrier against Whitehead's land. But that is not the real
state of the case. The Defendants, in order to effect an object of their own, brought on to
their land, or on to land which for this purpose may be treated as being theirs, a large
accumulated mass of water, and stored it up in a reservoir. The consequence of this was
damage to the Plaintiff, and for that damage, however skilfully and carefully the
accumulation was made, the Defendants, according to the principles and authorities to
which I have adverted, were certainly responsible. I concur, therefore, with my noble and
learned friend in thinking that the judgment below must be affirmed, and that there must
be judgment for the Defendant in Error.
10. House of Lords held that, the law casts an absolute duty on a person who lawfully brings
on his land something which though harmless while it remains there will naturally cause
damage if it escapes. Defendants are prima facie answerable for all the damage which is
the natural consequence of its escape. The plaintiff does not have to show negligence.
The defendant however can use as a defense a showing that the escape was Plaintiffs
fault or that it was caused by a major act of God.
11. Where the owner of land, without willfulness or negligence, uses his land in the ordinary
manner of its use, though mischief should thereby be occasioned to his neighbor, he will
not be liable in damages. But if he brings upon his land anything which would not
naturally come upon it, and which is in itself dangerous, and may become mischievous if
not kept under proper control, though in so doing he may act without personal willfulness
or negligence, he will be liable in damages for any mischief thereby occasioned.
73
PONTING v NOAKES AND OTHERS
Ponting: Appellant
Noakes and others: Respondent
[1894] 2 QB 281
QUEEN'S BENCH DIVISION: Charles and Henn Collins JJ
1. Negligence Dangerous thing left within reach of public Yew tree belonging to
defendant near boundary Leaves eaten by horse pastured in neighbouring field when
trespassing on efendant's land Liability for horse's death.
2. The plaintiff's horse was fatally poisoned by eating the leaves of a yew tree growing upon
land of the defendants adjoining the plaintiff's field in which the horse pastured. No part
of the yew tree projected over the plaintiff's land, but, some branches could be reached by
the horse stretching its neck over a ditch which belonged to the defendants and divided
their land from the plaintiff's field. No duty on the part of the defendants to fence their
land from the plaintiff's cattle was proved. In an action by the plaintiff for the value of the
horse.
3. Held: in the absence of any intention to injure the plaintiff's horse by placing something
in the nature of a trap for him, the defendants were not liable for injury sustained by the
horse through its own wrongful intrusion.
CHARLES J:
4. This was an appeal from a verdict and judgment for the plaintiff given at Andover
County Court for 22 pounds, being the value of a colt of the plaintiff which was alleged
to have been poisoned by eating the defendants' yew tree. The grounds of the appeal
were, first, that there was no evidence to go to the jury that the colt had in fact eaten of
the yew tree of the defendants; and, secondly, that if there was, the colt had eaten the yew
leaves under circumstances which entailed no legal liability on the defendants.
5. The plaintiff was a farmer, and occupied a field separated from the premises of the
defendants by a fence. On the side of the fence next to the plaintiff's field was a ditch
belonging to the defendants. On the defendants' land near the fence grew a yew tree, the
branches of which projected over the ditch, but not beyond it. They did not overhang the
plaintiff's field. At the distance of about 120 yards grew another yew tree in the garden of
one Hunt, which overhung the plaintiff's field, and in the hedge of the plaintiff's field,
about fifty yards from the defendants' yew, there was a small yew bush. On 25 June 1893,
the colt and several other horses were in the plaintiff's field. On June 26 the colt was
found dead five yards from the defendants' yew, and there was no doubt, from the
74
examination made of the body, that it had died from eating yew leaves. All the three trees
- the defendants', Hunt's, and the plaintiff's yew bush - presented appearances of having
been recently eaten. A veterinary surgeon stated that it was a fact within his knowledge
that horses have been known to walk a mile after eating yew before dying, and then to
drop down dead. Such a case, however, would be, he said, exceptional. The animal most
often drops down dead directly after eating, or within a short distance.
6. Upon this evidence the judge was asked to direct a verdict for the defendants, on the
ground that there was no evidence pointing to the colt having eaten of the defendants'
yew. It was equally consistent, it was said, with the colt having eaten either of Hunt's yew
tree or the plaintiff's yew bush. The judge, however, thought there was a case for the jury,
and they found that the colt had eaten of the defendants' tree, and not of the other trees. I
have, after some hesitation, come to the conclusion that there was some evidence to
support this finding,having regard in particular to the evidence of the veterinary surgeon.
The defendants' yew had been freshly eaten, and the meet common case is that death
ensues directly. The colt was found only five yards from the tree, and the two other
possible causes of mischief were respectively 120 and fifty yards off.This being the view
I take of the evidence, it becomes necessary to consider the second point. The poisonous
tree was admitted to be wholly on the defendants' land, but, inasmuch as it was so near to
the boundary that an animal could easily reach the branches, it was contended that the
principle of Fletcher v Rylands (1) was applicable. But this argument appears to me to
rest on a misconception of what that case really decided. The decision only refers to the
escape from a defendant's land of something which he has brought there, and which is
likely to do mischief if it escapes. In delivering the judgment of the Exchequer Chamber,
BLACKBURN, J, laid down the true rule of law in words expressly approved and
adopted in the House of Lords, as follows (LR 1 Exch at p 279):The person who for his
own purposes brings on his land, and collects and keeps there, anything likely to do
mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie
answerable for all the damage which is the natural consequence of its escape.
7. Various illustrations are then given, in all of which the cause of offence was not kept in
by the defendant. Thus the person whose grass is eaten by the escaping cattle of his
neighbour, whose mine is flooded by water from his neighbour's reservoir, whose cellar
is invaded by filth from his neighbour's privy, or whose habitation is made unhealthy by
vapours from his neighbour's factory, has in each case legitimate ground of complaint. To
use the language of the court in Tenant v Goldwin (2) (1 Salk at p 361)
8. Many other cases might be referred to illustrative of the rule. In all of them, however, it
will be found that the noxious thing, be it beasts, water, filth or smells, or what not, has
somehow escaped from the defendant's land. Thus in Firth v Bowling Iron Co (3) the
defendants' predecessors had fenced their land with wire rope, which the defendants
allowed to remain. From long exposure the strands of the wire composing the rope
became decayed, and pieces of it fell on the plaintiff's adjoining pasture. One of his cows
swallowed a piece, and died in consequence. The defendant was held liable to
Compensate the plaintiff. So, again, where the defendants planted on their own land a
yew tree which projected over the plaintiff's land, and the plaintiff's horse ate of it and
75
died, the defendants were held liable: see Crowhurst v Amersham Burial Board (4). On
the other hand, in a case where the declaration merely charged that the defendant was
possessed of yew trees, the clippings of which he knew to be poisonous, it was held that
such an allegation of fact did not support a duty to take care to prevent the clippings from
being put upon his neighbour's land where horses and cattle might eat them: see Wilson v
Newberry (5).
9. The rule of law enunciated in Fletcher v Rylands (1) I think therefore has no application,
and I proceed to consider whether upon any other ground the defendant's liability can be
made out. Can it be said that there is any duty on a man either not to grow a poisonous
tree so near the boundary of his property as to be easily accessible to the stock of his
neighbour, or, if he does so, to take precautions to prevent any danger to the stock
arising? Here it must be remembered that no liability on the part of the defendants to
fence against the cattle of his neighbour was proved. Had any such liability been shown
to exist, and had the fence been defective, it might well have been found by the jury that
the colt had obtained access to the defendants' land through breach of his obligation to
fence, and, the poisonous tree being immediately within the fence, that the eating of its
leaves by the colt was the natural consequence of the defendants' breach of duty; but,
there being no liability on the part of the defendants to repair the fence, I do not see that
they can be made responsible for the eating of these yew leaves by an animal which, in
order to reach them, had come upon his land. The hurt which the animal received was due
to his wrongful intrusion. He had no right to be there, and his owner therefore has no
right to complain.
10. The true test in such a case is pointed out by GIBBS, CJ, in Deane v Clayton (6) (7 Taunt
at p 533) in a judgment which was emphatically approved by the Court of Exchequer in
Jordin v Crump (7) though on the facts proved in Deane v Clayton (6) the court was
equally divided as to what judgment should be entered. We must ask, he says, in each
case, whether the man or animal which suffered had or had not a right to be where he was
when he received the hurt. If he had not, then - unless, indeed, the element of intention to
injure, as in Bird v Holbrook (8) or of nuisance, as in Barnes v Ward (9) is present - no
action is maintainable.
11. It was, however, urged that there was here something in the nature of a nuisance, and that
the growing of this yew tree so near the boundary was actionable in case damage was
caused by it, on the same ground as that on which Townsend v Wathen (10) was decided.
It was there held that if a man places traps baited with flesh on his own ground so near to
the promises of another that dogs kept on his neighbour's premises must probably be
attracted by their instinct into the traps, and if in consequence his neighbour's dogs are so
attracted and are injured, an action lies. But no evidence whatever was offered in this
case that the yew trees could be regarded as a trap in this sense to the plaintiff's horses,
and, in the absence of any such evidence, it was, I think, the plaintiff's business to keep
his horses from going too near the tree, and not the defendants' duty to take any
precautions against their doing so. In the result, therefore, I think that this appeal must be
allowed and judgment entered for the defendants with costs.
76
12. The present case is much stronger than that, for here the plaintiff had express notice that
dog spears were set in the wood, though, were this even otherwise, our decision would
still be in favour of the defendant on the short ground that the setting of them was a
lawful act, and the accident occasioned by them was the act of the dog, not of the
defendant, and that the plaintiff was bound to keep his dog on the footpath.
13. Unless the fact that the yew tree was close to the fence makes a difference, this authority
seems conclusive that the defendants are not liable, if the yew tree be regarded merely as
a dangerous thing, like a dog spear, not having in itself the additional element of tempting
a trespasser. It seems quite clear, however, that the principle cannot be affected by the
distance from the defendants' boundary. It was the duty of the plaintiff to keep his horse
from trespassing, and not of the defendants to guard against the consequences of such
trespass. Such duty is clear, and the plaintiff might have been liable to the defendants, for
damage done by his horse, while so trespassing, to the land of the latter: see Cox v
Burbidge (11); Ellis v Lotus Iron Co (12). Does it, then, make any difference that a yew
tree is likely to tempt a horse to trespass? I think not, unless it were proved that it was put
or kept there for the purpose of enticing the animal to his destruction, as was done in
Townsend v Wathen (10). The wrongful intention was the gist of that action. If such
intention is disproved, it follows, if the above reasoning is correct, that there can be no
liability. Indeed, the very point is put as an illustration by GIBBS, CJ, in Deane v Clayton
(6) where he takes the case of water in which a plaintiff has no right polluted by the act of
the defendant and drunk by the plaintiff's cattle, who reach it through a trespass on the
defendant's land. He says (7 Taunt at pp 531, 532):Their right to be there is the gist of
the action, and in no instance has such an action been supported where cattle had no right
to be in the place in which they received the damage unless the defendant had used some
undue means to entice them thither, as in Townsend v Wathen (10) which stands upon a
distinct ground.
14. It is obvious that water might have just as great an attraction for cattle as a yew tree.The
result may be summarised by saying the action is one of negligence, and the possession
of something attractive and injurious to cattle casts no duty onthe owner to take
precautions against their trespassing in pursuit of it when he has not placed or kept it
there with that purpose. As already pointed out, a yew tree near a fence is a lawful and
usual thing, and it would be strange if the owner should find himself fixed with varying
obligations in respect thereof according to the varying uses to which the adjoining owner
chose to put his land.
15. Lastly, it was suggested that the analogy of such a case as Lynch v Nurdin (13) might
apply, and that as in that case a defendant who had left his cart and horse in a highway
where he had a right for the time being to place them was held liable for injury to a child
who trespassed upon it in his absence, so here the defendants might be liable for not
taking precautions to prevent the horse getting access to the tree. The cases, however,
differ in a crucial point. There the cart was left in a public highway, where the children
and the plaintiff had an equal right to be; and the children were not trespassers before
they got into the cart. If the plaintiff had licensed the defendants to carry his yew tree
across the plaintiff's field, and the defendants while doing so had left it unguarded, and
while so left the horse had eaten it, the cases would be more nearly parallel. So of the
77
case put during the argument, of a poisonous drug exposed in a very tempting shape in an
open shop-front beside a highway within reach of a child, who, being tempted, ate it and
was injured. If an action could be maintained in such a case, it would, I think, be only on
the analogy of those cases which decide that the person who makes or keeps a pitfall so
near the highway as to be a danger to persons passing along it is responsible in damages
to a passenger along the highway who accidentally falls into it (see Barnes v Ward (9))
the child obeying its instinct being regarded as in the same position as a person who
without negligence falls off the highway into the pitfall. Those cases rest on the special
duty incident to the occupation of property adjoining a highway, and have no application
to a case where the question is merely between the occupiers of adjoining land; and, even
if the duties were identical, the danger in the illustration is concealed, while in the case of
the yew tree it is obvious. I think, therefore, that judgment ought to be entered for the
defendants.
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T.C.BALAKRISHNAN MENON AND OTHERS v. T.R.

SUBRAMANIAN AND ANOTHER
T.C.Balakrishnan Menon and Others: Appellant
v.
T.R. Subramanian and Another: Respondent
AIR 1968 Ker 151
T.C. Raghavan, J.
1. Though this second appeal has been argued at some length and some decisions have also
been cited. I do not find much force in the case.
2. The second appeal arises out of a suit for damages by the first respondent, a minor
represented by his father, for injuries caused to him by the explosion of a minnal gundu at
the Trichur Pooram in April 1959. The second respondent is the 20th defendant, the
independent contractor who attended to the exhibition of fire works; and the appellants
are some of the members of the Pooram Celebration Committee They were members of
the Paramekkavu Devaswom Committee as well alone with some others who were also
impleaded as defendants in the suit. I may add that the Paranwkkavu Devaswom itself
was the first defendant. Both the lower courts have decreed the suit; and there is no
dispute now regarding the quantum of damages or regarding the finding that the injury
was caused by the negligence of the 20th defendant , The trial court made the appellants
and the Devaswom liable: It held that it was the Celebration Committee that was
responsible for the conduct of the Pooram and not the Devaswom Committee. On appeal
the District Judge held that in view of the finding of the trial judge that the Devaswom
Committee was not responsible, the Devaswom could not also be made responsible.
Ultimately, the liability was confined to the appellants, who were members of the Pooram
Celebration Committee.
3. A minnal gundu is an explosive made out of a coconut shell by filling it with an

explosive substance. The coconut shell itself is placed in a bamboo tube with gun powder
beneath; and the tube is kept upright tied to an iron peg driven into the ground. When the
gun powder in the tube is ignited through a small hole on the side of the tube, the coconut
shell is ejected vertically several feet into the sky where it explodes producing a flash or
lightning-like light and a loud report. Two processions of elephants bearing the deity or
Poorams organised by two Devaswoms, the Paramekkavu and the Thiruvambadi
Devaswoms, meet at the southern gopuram of the Vadakkunnatha Temple in the evening
at about 5 or 5.30 in the Thekkumkad Maidan around the temple; and just as the elephant
of the Paramekkavu Devaswom bearing the deity emerges through the southern gopuram
79
before this important event, a few hundreds of olappadakkams interspersed with about 20
or 25 minnal gundus are fired. (Olappadakams are a type of fire works made with gun
powder wrapped in small parcels of palm leaves.) The accident is said to have happened
when this was done.
4. The finding of both the lower courts is that the minnal gundu instead of rising into the
sky and exploding there, ran at a tangent, fell amidst the crowd and exploded causing
serious injuries to the first respondent. The further finding is that the accident was caused
by the negligence of the 20th defendant in not properly securing the bamboo tube
containing the coconut shell to the iron peg and was also due to his negligence in not
choosing strong tubes because the tube in question burst. On the basis of these findings
which cannot be questioned, the accident could have happened in one of two ways: either
the coconut shell containing the explosive substance was not ejected sufficiently high into
the sky due to the bursting of the bamboo tube, so that it fell among the crowd before it
burst: or it ran at a tangent due to the tilting of the tube and exploded in the midst of the
crowd. In either event, the negligence was of the 20th defendant, the independent
contractor.
5. The further question for consideration is whether the appellants, who engaged the
independent contractor, would also be liable. The minnal gundu is an explosive and is
therefore an "extra-hazardous" object; and persons who use such an object, which, in its
very nature, involves special danger to others, must be liable for the negligence of their
independent contractor. The duty to keep such a substance without causing injury to
others is a "non-delegable" duty: the appellants could not have escaped liability for the
breach of such a duty by engaging an independent contractor. The liability of the
appellants can also be based on the rule enunciated by Blackburn J. in the famous case of
Rylands v. Fletcher, (1868-3 H L 330)
6. Sri. V K. K Menon, on behalf of the appellants, argues that in this case there was no
"non-natural" user of the land where the minnal gundus were exploded. His argument is
that it is only a natural user of the Thekkumkad Maidan during the day of the Pooram
festival to collect minnal gundus and explode them there. I do not agree, because under
the Indian Explosives Act for making and storing explosive substances even on the
Thekkumkad Maidan on the Pooram day licences have to be taken from the prescribed
authorities It is admitted that for exhibiting fire works permission has to be obtained from
the District Magistrate. The accident took place in this case at 5.30 pm when the two
Poorami organised by the two Devaswoms were about to meet before the southern
gopuram of the temple. It is also admitted that for the exhibition of fire works during the
day no licence was taken, though a licence was taken for the night. It is therefore obvious
that this argument of Mr. V. K. K. Menon has no substance.
7. The next contention urged by the counsel of the appellants is that the principle of volunti
non fit injuria must apply to the case. The argument is that since the first respondent
voluntarily came to witness the Pooram and the fire works, he is a volunteer and therefore
not entitled to damages. What the evidence discloses is that the volunteers who helped
the 20th defendant kept a cordon round a particular area and the gundus were kept and
exploded within that area. The gundu that caused injury to the first respondent fell
80
outside this area and exploded. The counsel argues that even this would not have made
the first respondent any the less a volunteer. I have asked Mr V. K. K. Menon whether
every one in the big crowd of a few lakhs witnessing the fire works anywhere in the
Thekkumkad Maidan would be a volunteer, and he has answered in the affirmative. This
answer alone is sufficient to reject this contention. If the first respondent entered the area
within the cordon and sustained injuries, he might be considered to be a volunteer: but to
argue that every one who stood anywhere in the Thekkumkad Maidan, a very extensive
and large area open to the public, is a volunteer is to contend for something bordering on
the preposterous.
8. The third argument of Mr. V. K. K. Menon is that the Pooram was conducted for the
benefit of the public and those who witnessed the fire works were also benefited, so that
no one in the crowd could have claimed damages if he was injured by the fire works in
support of this argument some decisions have been cited, where water, gas etc. were
stored for the common use of several tenants and the landlord in a building and such
water or gas escaped and caused damage to one of the tenants. Obviously these cases
cannot have any application to the case before me. I am of opinion that the Pooram is not
conducted for the benefit of everyone who comes there to witness the fire works in the
same sense as water or gas is stored for the common use of the tenants and the landlord
living in adjoining tenements or flats. Therefore, this argument has also to be rejected.
9. Lastly it is urged that since the other defendants who were members of the Devaswom
Committee and the Devaswom were held not liable the appellants who were members of
the Pooram Committee should also have been exonerated. If the Devaswom was
conducting the Pooram and if it fan be said that the 20th defendant was engaged by the
Devaswom, then the Devaswom should also have been made liable along with the
members of the Devaswom Committee, who represented the Devaswom. However, the
trial court felt that the Poo-ram was being conducted by the Celebration Committee, who
it was that engaged the independent contractor. In this view, it refused to grant a decree
against the members of the Devaswom Committee: still it passed a decree against the
Devaswom. The lower appellate court exonerated the Devaswom only on the ground that
since there was no appeal by the first respondent against the members of the Devaswom
Committee, the Devaswom itself could not be made liable. In fact, the Devaswom, the
members of the Devaswom Committee, the members of the Celebration Committee
including the appellants and the 20th defendant were all joint tortfeasors and each of
them was jointly and severally liable in damages. Therefore, the omission to grant a
decree against some of the joint tortfeasors is no reason for exonerating the others.
10. I do not think I need refer to the decisions cited by the counsel on both sides: the position
in law appears to be clear beyond doubt.The concurrent decision of the lower
courts is confirmed; and the second appeal is dismissed with costs of the first respondent.
81
NOBLE v. HARRISON
Noble: Appellant
v.
Harrison: Respondent
[1926] 2 KB 332
Rowlatt and Wright JJ.
1. A branch of a beech tree growing on the defendant's land overhung a highway at a height
of 30ft above the ground. In fine weather the branch suddenly broke and fell upon the
claimant's vehicle, which was passing along the highway. In an action by the claimant
claiming in respect of the damage to his vehicle, the county court judge found that neither
the defendant nor his servants knew that the branch was dangerous, and that the fracture
was due to a latent defect not discoverable by any reasonably careful inspection, but he
held that the defendant was liable: upon the principle of Rylands v Fletcher (1868) LR 3
HL 330; and for a nuisance.
Reversing the decision of the county court judge:1. that the Rylands v Fletcher principle
had no application, inasmuch as a tree was not in itself a dangerous thing, and to grow
trees was one of the natural uses of the soil;.2. that the mere fact that the branch overhung
the highway did not make it a nuisance seeing that it did not obstruct the free passage of
the highway, and although the branch proved to be a danger the defendant was not liable,
inasmuch as he had not created the danger and had no knowledge, actual or imputed, of
its existence. (Barker v Herbert [1911] 2 KB 633 applied.) (Observations of Best J in
Earl of Lonsdale v Nelson (1823) 2 B & C 302 and Tarry v Ashton (1876) 1 QBD 314,
distinguished.)
2. Repairers placed a car under a lime tree. Lime pollen fell or was driven on to the car by
rain. The acid concentration from the lime pollen pitted and damaged the cellulose and
lacquer treatment of the car body.
Repairers were negligent as bailees and liable for damage.
82
NICHOLS v. MARSLAND
Nichols: Appellant
v.
Marsland: Respondent
(1875) LR 10 Ex 255
Mellish, J
1. The defendant was the owner of a series of artificial ornamental lakes, which had
existed for a great number of years, and had never previous to 18th June, 1872 caused
any damage. On that day, however, after a most unusual fall of rain, the lakes
overflowed, the dams at their end gave way, and the water out of the lakes carried
away the county bridges lower downstream.
2. The jury found no negligence. An exceptionally heavy rainstorm was a sufficient

excuse as an act of God, to escape liability under the rule in Rylands -v- Fletcher. Act
of God is not, and never was, the same as inevitable accident or the absence of
negligence. The defendant could not have anticipated the exceptional flood which
caused her dam to break; no conduct of hers was a proximate cause of the plaintiffs
damage.
3. Mellish LJ distinguished Ryland v Fletcher: But the present case is distinguished

from that of Rylands -v- Fletcher in this, that it is not the act of the defendant in
keeping this reservoir, an act in itself lawful, which alone leads to the escape of the
water, and so renders wrongful that which but for such escape would have been
lawful. It is the supervening vis major of the water caused by the flood, which,
superadded to the water in the reservoir (which of itself would have been innocuous),
causes the disaster. and the remaining question is, did the defendant make out that
the escape of the water was owing to the act of God?
4. Now the jury have distinctly found, not only that there was no negligence in the
construction or the maintenance of the reservoirs, but that the flood was so great that
it could not reasonably have been anticipated, although, if it had been anticipated the
effect might have been prevented; and this seems to us in substance a finding that the
escape of the water was owing to the act of God. However great the flood had been, if
83
it had not been greater than floods that had happened before and might be expected to
occur again, the defendant might not have made out that she was free from fault; but
we think she ought not to be held liable because she did not prevent the effect of an
extraordinary act of nature, which she could not anticipate.
5. It was indeed ingeniously argued for the appellant that at any rate the escape of the
water was not owing solely to the act of God, because the weight of the water
originally in the reservoirs must have contributed to break down the dams, as well as
the extraordinary water brought in by the flood. We think, however, that the
extraordinary quantity of water brought in by the flood is in point of law the sole
proximate cause of the escape of the water. It is the last drop which makes the cup
overflow.
84
M.C. MEHTA AND ANOTHER v. UNION OF INDIA
M.C. Mehta and Another: Appellant
v.
Union of India: Respondent

AIR1987 SC 1086
Bhagwati, P.N. (CJ)
1. The petitioners, in this writ petition under Art. 32, sought a direction for closure of
the various units of Shriram Foods & Fertilizers Industries on the ground that they
were hazardous to the community. During the pendency of the petition, there was
escape of oleum gas from one of the units of Shriram. The Delhi Legal Aid and
Advice Board and the Delhi Bar Association filed applications for award of
compensation to the persons who had suffered harm on account of escape of oleum
gas.
2. A Bench of three Hon'ble Judges while permitting Shriram to restart its power plant
as also other plants subject to certain conditions, referred the applications for
compensation to a larger Bench of five Judges to ascertain what is the measure of
liability of an enterprise which is engaged in an hazardous or inherently dangerous
industry, if by reason of an accident occurring in such industry, persons die or are
injured. Does the rule in Rylands v. Fletcher, (1866 Law Report 1 Exchequer 265)
apply or is there any other principle on which the liability can be determined.
3. Disposing of the applications, i) The Delhi Legal Aid and Advice Board is directed
to take up the cases of all those who claim to have suffered on account of oleum gas
and to file actions on their behalf in the appropriate Court for claiming compensation
and the Delhi Administration is directed to provide necessary funds to the Board for
the purpose. ii) Where there is a violation of a fundamental or other legal right of a
person or class of persons who by reason of poverty or disability or socially or
economically disadvantaged position cannot approach a Court of law for justice, it
would be open to any public-spirited individual or social action group to bring an
action for vindication of the fundamental or other legal right of such individual or
class of individuals and this can be done not only by filing regular writ petition under
Art. 226 in the High Court and under Art. 32 in this Court, but also by addressing a
letter to the Court. iii) Even if a letter is addressed to an individual Judge of the Court,
it should be entertained, provided of course it is by or on behalf of a person in custody
85
or on behalf of a woman or a child or a class or deprived or disadvantaged persons.

iv) Letters addressed to individual Justices of this Court should not be rejected merely
because they fail to conform to the preferred form of address nor should the Court
adopt a rigid stance that no letters will be entertained unless they are supported by an
affidavit. If the Court were to insist on an affidavit as a condition of entertaining the
letters the entire object and purpose of epistolary jurisdiction would be frustrated
because most of the poor and disadvantaged persons will then not be able to have
easy access to the Court and even the social action groups will find it difficult to
approach the Court. v) The power of the Court is not only injunctive in ambit, that is,
preventing the infringement of fundamental right but it is also remedial in scope and
provides relief against a breach of the fundamental right already committed. vi) The
power of the Court to grant such remedial relief may include the power to award
compensation in appropriate cases. The infringement of the fundamental right must
be gross and patent, that is incontrovertible and ex-facie glaring and either such
infringement should be on a large scale affecting the fundamental rights of a large
number of persons or it should appear unjust or unduly harsh or op- pressing on
account of their poverty or disability or socially or economically disadvantaged
position to require the person or persons affected by such infringement to initiate and
pursue action in the Civil Courts.
4. The rule in Rylands v. Fletcher (supra) laid down a principle of liability that if a
person who brings on to his land and collects and keeps there anything likely to do
harm and such thing escapes and does damage to another, he is liable to compensate
for the damage caused. This rule applies only to non-natural user of the land and it
does not apply to things naturally on the land or where the escape is due to an act of
God and an act of a stranger or the default of the person injured or where the thing
which escapes is present by the consent of the person injured or in certain cases
where there is statutory authority.
5. Law has to grow in order to satisfy the needs of the fast changing society and keep
abreast with the economic developments taking place in the country. Law cannot
afford to remain static. The Court cannot allow judicial thinking to be constricted by
reference to the law as it prevails in England or in any other foreign country.
Although this Court should be prepared to receive light from whatever source it
comes, but it has to build up its own jurisprudence, evolve new principles and lay
down new norms which would adequately deal with the new problems which arise in
a highly industrialized economy. If it is found that it is necessary to construct a new
principle of law to deal with an unusual situation which has arisen and which is likely
to arise in future on account of hazardous or inherently dangerous industries which
86
are concomitant to an industrial economy, the Court should not hesitate to evolve
such principles of liability merely because it has not been so done in England.
6. An enterprise which is engaged in a hazardous or inherently dangerous industry

which poses a potential threat to the health and safety of the persons working in the
factory and residing in the surrounding areas owes an absolute non-delegable duty to
the community to ensure that if any harm results to anyone, the enterprise must be
held to be under an obligation to provide that the hazardous or inherently dangerous
activity must be conducted with the highest standards of safety and if any harm
results on account of such activity the enterprise must be absolutely liable to
compensate for such harm irrespective of the fact that the enterprise had taken all
reasonable care and that the harm occurred without any negligence on its part.
7. If the enterprise is permitted to carry on an hazardous or inherently dangerous activity

for its profit, the law must presume that such permission is conditional on the
enterprise absorbing the cost of any accident arising on account of such activity as an
appropriate item of its overheads. The enterprise alone has the resource to discover
and guard against hazards or dangers and to provide warning against potential
hazards.
8. The measure of compensation in such kind of cases must be co-related to the

magnitude and capacity of the enterprise because such compensation must have a
deterrent effect. The larger and more prosperous the enterprise, the greater must be
the amount of compensation payable by it for the harm caused on account of an
accident in carrying on of the hazardous or inherently dangerous activity by the
enterprise.
9. JUDGMENT:The Bench of three Judges permitted Shriram Foods and Fertiliser

Industries (hereinafter referred to as Shriram) to restart its power plant as also plants
for manufacture of caustic chlorine including its by-products and recovery plants like
soap, glycerine and technical hard oil, subject to the conditions set out in the
Judgment. That would have ordinarily put an end to the main controversy raised in
the writ petition which was filed in order to obtain a direction for closure of the
various units of Shriram on the ground that they were hazardous to the community
and the only point in dispute which would have survived would have been whether
the units of Shriram should be directed to be removed from the place where they are
presently situate and relocated in another place where there would not be much
human habitation so that there would not be any real danger to the health and safety
of the people. But while the writ petition was pending there was escape of oleum gas
87
from one of the units of Shriram on 4th and 6th December, 1985 and applications
were filed by the Delhi Legal Aid& Advice Board and the Delhi Bar Association for
award of compensation to the persons who had suffered harm on account of escape of
oleum gas. These applications for compensation raised a number of issues of great
constitutional importance and the Bench of three Judges therefore formulated the
issues and asked the petitioner and those supporting him as also Shriram to file their
respective written submissions so that the Court could take up the hearing of these
applications for compensation. When these applications for compensation came up
for hearing, it was felt that since the issues raised involved substantial questions of
law relating to the interpretation of Articles 21 and 32 of the Constitution, the case
should be referred to a larger Bench of five Judges and this is how the case has now
come before us.
10. Mr. Diwan, learned counsel appearing on behalf of Shri- ram raised a preliminary
objection that the Court should not proceed to decide these constitutional issues since
there was no claim for compensation originally made in the writ petition and these
issues could not be said to arise on the writ petition. Mr. Diwan conceded that the
escape of oleum gas took place subsequent to the filing of the writ petition but his
argument was that the petitioner could have applied for amendment of the writ
petition so as to include a claim for compensation for the victims of oleum gas but no
such application for amendment was made and hence on the writ petition as it stood,
these constitutional issues did not arise for consideration. We do not think this
preliminary objection raised by Mr. Diwan is sustainable. It is undoubtedly true that
the petitioner could have applied for amendment of the writ petition so as to include a
claim for compensation but merely because he did not do so, the applications for
compensation made by the Delhi Legal Aid & Advice Board and the Delhi Bar
Association cannot be thrown out. These applications for compensation are for
enforcement of the fundamental right to life en- shrined in Article 21 of the
Constitution and while dealing with such has on numerous occasions pointed out that
where there is a violation of a fundamental or other legal right of a person or class of
persons who by reason of poverty or disability or socially or economically
disadvantaged position cannot approach a Court of law for justice, it would be open
to any public spirited individual or social action group to bring an action for
vindication of the fundamental or other legal right of such individual or class of
individuals and this can be done not only by filing a regular writ petition but also by
addressing a letter to the Court. If this Court is prepared to accept a letter complaining
of violation of the fundamental right of an individual or a class of individuals who
cannot approach the Court for justice, there is no reason why these applications for
compensation which have been made for enforcement of the fundamental right of the
88
persons affected by the oleum gas leak under Article 21 should not be entertained.
The Court while dealing with an application for enforcement of a fundamental right
must look at the substance and not the form. We cannot therefore sustain the
preliminary objection raised by Mr. Diwan.
11. We must also deal with one major question which was seriously debated before us
and that question is as to what is the measure of liability of an enterprise which is
engaged in a hazardous or inherently dangerous industry, if by reason of an accident
occurring in such industry, persons die or are injured. Does the rule in Rylands v.
Fletcher apply or is there any other principle on which the liability can be
determined? The rule in Rylands v. Fletcher was evolved in the year 1866 and it
provides that a person who for his own purposes being on to his land and collects and
keeps there anything likely to do mischief if it escapes must keep it at his peril and, if
he falls to do so, is prima facie liable for the damage which is the natural consequence
of its escape. The liability under this rule is strict and it is no defense that the thing
escaped without that person's wilful act, default or neglect or even that he had no
knowledge of its existence. This rule laid down a principle of liability that if a person
who brings on to his land and collects and keeps there anything likely to do harm and
such thing escapes and does damage to another, he is liable to compensate for the
damage caused. Of course, this rule applies only to non-natural user of the land and it
does not apply to things naturally on the land or where the escape is due to an act of
God and an act of a stranger or the default of the person injured or where the thing
which escapes is present by the consent of the person injured or in certain cases
where there is statutory authority. Vide Halsbury Laws of England, Vol. 45 para
1305. Considerable case law has developed in England as to what is natural and what
is non-natural use of land and what are precisely the circumstances in which this rule
may be displaced. But it is not necessary for us to consider these decisions laying
down the parameters of this rule because in a modern industrial society with highly
developed scientific knowledge and technology where hazardous or inherently
dangerous industries are necessary to carry out part of the developmental programme.
This rule evolved in the 19th Century at a time when all these developments of
science and technology had not taken place cannot afford any guidance in evolving
any standard of liability consistent with the constitutional norms and the needs of the
present day economy and social structure. We need not feel inhibited by this rule
which was evolved in this context of a totally different kind of economy. Law has to
grow in order to satisfy the needs of the fast changing society and keep abreast with
the economic developments taking place in the country. As new situations arise the
law has to be evolved in order to meet the challenge of such new situations. Law
cannot afford to remain static.
89
12. We have to evolve new principles and lay down new norms which would adequately
deal with the new problems which arise in a highly industrialized economy. We
cannot allow our judicial thinking to be constricted by reference to the law as it
prevails in England or for the matter of that in any other foreign country. We no
longer need the crutches of a foreign legal order. We are certainly prepared to receive
light from whatever source it comes but we have to build up our own jurisprudence
and we cannot countenance an argument that merely because the new law does not
recognize the rule of strict and absolute liability in cases of hazardous or dangerous
liability or the rule as laid down in Rylands v. Fletcher as is developed in England
recognizes certain limitations and responsibilities.
13. We in India cannot hold our hands back and I venture to evolve a new principle of
liability which English courts have not done. We have to develop our own law and if
we find that it is necessary to construct a new principle of liability to deal with an
unusual situation which has arisen and which is likely to arise in future on account of
hazardous or inherently dangerous industries which are concomitant to an industrial
economy, there is no reason why we should hesitate to evolve such principle of
liability merely because it has not been so done in England. We are of the view that
an enterprise which is engaged in a hazardous or inherently dangerous industry which
poses a potential threat to the health and safety of the persons working in the factory
and residing in the surrounding areas owes an absolute and non-delegable duty to the
community to ensure that no harm results to anyone on account of hazardous or
inherently dangerous nature of the activity which it has undertaken. The enterprise
must be held to be under an obligation to provide that the hazardous or inherently
dangerous activity in which it is engaged must be conducted with the highest
standards of safety and if any harm results on account of such activity, the enterprise
must be absolutely liable to compensate for such harm and it should be no answer to
the enterprise to say that it had taken all reasonable care and that the harm occurred
without any negligence on its part. Since the persons harmed on account of the
hazardous or inherently dangerous activity carried on by the enterprise would not be
in a position to isolate the process of operation from the hazardous preparation of
substance or any other related element that caused the harm must be held strictly
liable for causing such harm as a part of the social cost for carrying on the hazardous
or inherently dangerous activity. If the enterprise is permitted to carry on a hazardous
or inherently dangerous activity for its profit, the law must presume that such
permission is conditional on the enterprise absorbing the cost of any accident arising
on account of such hazardous or inherently dangerous activity as an appropriate item
of its over-heads. Such hazardous or inherently dangerous activity for private profit
can be tolerated only on condition that the enterprise engaged in such hazardous or
90
inherently dangerous activity indemnifies all those who suffer on account of the
carrying on of such hazardous or inherently dangerous activity regardless of whether
it is carried on carefully or not. This principle is also sustainable on the ground that
the enterprise alone has the resource to discover and guard against hazards or dangers
and to provide warning against potential hazards. We would therefore hold that where
an enterprise is engaged in a hazardous or inherently dangerous activity and harm
results to anyone on account of an accident in the operation of such hazardous or
inherently dangerous activity resulting, for example, in escape of toxic gas the
enterprise is strictly and absolutely liable to compensate all those who are affected by
the accident and such liability is not subject to any of the exceptions which operate
vis-a-vis the tortious principle of strict liability under the rule in Rylands v. Fletcher
(supra). We would also like to point out that the measure of compensation in the kind
of cases referred to in the preceding paragraph must be co-related to the magnitude
and capacity of the enterprise because such compensation must have a deferent effect.
The larger and more prosperous the enterprise, the greater must be the amount of
compensation payable by it for the harm caused on account of an accident in the
carrying on of the hazardous or inherently dangerous activity by the enterprise.
14. Since we are not deciding the question as to whether Shriram is an authority within
the meaning of Article 12 so as to be subjected to the discipline of the fundamental
right under Article 21, we do not think it would be justified in setting up a special
machinery for investigation of the claims for compensation made by those who allege
that they have been the victims of oleum gas escape. But we would direct that Delhi
Legal Aid and Advice Board to take up the cases of all those who claim to have
suffered on account of oleum gas and to file actions on their behalf in the appropriate
court for claiming compensation against Shriram. Such actions claiming
compensation may be filed by the Delhi Legal Aid and Advice Board within two
months from today and the Delhi Administration is directed to provide the necessary
funds to the Delhi Legal Aid and Advice Board for the purpose of filing and
prosecuting such actions. The High Court will nominate one or more Judges as may
be necessary for the purpose of trying such actions so that they may be expeditiously
disposed of. So far as the issue of relocation and other issues are concerned the writ
petition will come up for hearing on 3rd February, 1987.
91
RAME GOWDA (D) BY LRS v. M. VARADAPPA NAIDU (D) BY LRS. &

ANR
Rame Gowda (D) by Lrs.: Petitioner
v.
M. Varadappa Naidu (D) by Lrs. & Anr : Respondent
Appeal (civil)7662 of 1997
R.C. Lahoti, J.
1. The defendant is in appeal feeling aggrieved by the judgment and decree of the Trial
Court, upheld by the High Court, restraining him from interfering with the possession and
enjoyment of the suit schedule property by the respondent.
2. The plaintiff and the defendant both have expired. Their LRs are on record. For the sake
of convenience we are making reference to the original parties i.e. the plaintiff and the
defendant.
3. The suit property, a piece of land, is situated in Arekempanahally, 36th Division. It
appears that the plaintiff and the defendant both claim to be owning two adjoining pieces
of land. There is a dispute as to the exact dimensions and shapes (triangular or
rectangular) of the pieces of land claimed to be owned and possessed respectively by the
two parties. The real dispute, it seems, is about the demarcation of the boundaries of the
two pieces of land. However, the fact remains, and that is relevant for our purpose, that
the piece of land which forms the subject-matter of the suit is in the possession of the
plaintiff-respondent. The plaintiff-respondent was raising construction over the piece of
land in his possession, and that was obstructed by the defendant-appellant claiming that
the land formed part of his property and was owned by him. The plaintiff filed a suit
alleging his title as also his possession over the disputed piece of land. The Trial Court
found that although the plaintiff had failed in proving his title, he had succeeded in
proving his possession over the suit property which he was entitled to protect unless
dispossessed therefrom by due process of law. On this finding the Trial Court issued an
injunction restraining the defendant- appellant from interfering with the peaceful
possession and enjoyment of the plaintiff-respondent over the suit property.
4. It is contended by the learned counsel for the defendant-appellant that the suit filed by the
plaintiff was based on his title. The suit itself was defective inasmuch as declaration of
title was not sought for though it was in dispute. Next, it is submitted that if the suit is
based on title and if the plaintiff failed in proving his title, the suit ought to have been
dismissed without regard to the fact that the plaintiff was in possession and whether the
defendant had succeeded in proving his title or not. We find no merit in both these
submissions so made and with force.
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Salmond states in Jurisprudence (Twelfth Edition), "few relationships are as vital to man as that
of possession, and we may expect any system of law, however primitive, to provide rules for its
protection. . . . . . . Law must provide for the safeguarding of possession. Human nature being
what it is, men are tempted to prefer their own selfish and immediate interests to the wide and
long-term interests of society in general. But since an attack on a man's possession is an attack
on something which may be essential to him, it becomes almost tantamount to an assault on the
man himself; and the possessor may well be stirred to defend himself with force. The result is
violence, chaos and disorder." (at pp. 265, 266).
"In English Law possession is a good title of right against anyone who cannot show
a better. A wrongful possessor has the rights of an owner with respect to all persons
except earlier possessors and except the true owner himself. Many other legal
systems, however, go much further than this, and treat possession as a provisional
or temporary title even against the true owner himself. Even a wrongdoer, who is
deprived of his possession, can recover it from any person whatever, simply on the
ground of his possession. Even the true owner, who takes his own, may be forced in
this way to restore it to the wrongdoer, and will not be permitted to set up his own
superior title to it. He must first give up possession, and then proceed in due course
of law for the recovery of the thing on the ground of his ownership. The intention of
the law is that every possessor shall be entitled to retain and recover his possession,
until deprived of it by a judgment according to law." (Salmond, ibid, pp. 294-295)
"Legal remedies thus appointed for the protection of possession even against
ownership are called possessory, while those available for the protection of
ownership itself may be distinguished as proprietary. In the modern and medieval
civil law the distinction is expressed by the contrasted terms petitorium (a
proprietary suit) and possessorium (a possessory suit)." (Salmond, ibid, p.295) The
law in India, as it has developed, accords with the jurisprudential thought as
propounded by Salmond. In Midnapur Zamindary Co. Ltd. Vs. Kumar Naresh
Narayan Roy and Ors. 1924 PC 144, Sir John Edge summed up the Indian law by
stating that in India persons are not permitted to take forcible possession; they must
obtain such possession as they are entitled to through a Court.
5. The thought has prevailed incessantly, till date, the last and latest one in the chain of
decisions being Ramesh Chand Ardawatiya Vs. Anil Panjwani (2003) 7 SCC 350. In-
between, to quote a few out of severals, in Lallu Yeshwant Singh (dead) by his legal
representative Vs. Rao Jagdish Singh and others (1968) 2 SCR 203, this Court has held
that a landlord did commit trespass when he forcibly entered his own land in the
possession of a tenant whose tenancy has expired. The Court turned down the submission
that under the general law applicable to a lessor and a lessee there was no rule or
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principle which made it obligatory for the lessor to resort to Court and obtain an order for
possession before he could eject the lessee. The court quoted with approval the law as
stated by a Full Bench of Allahabad High Court in Yar Mohammad Vs. Lakshmi Das
(AIR 1959 All. 1,4), "Law respects possession even if there is no title to support it. It will
not permit any person to take the law in his own hands and to dispossess a person in
actual possession without having recourse to a court. No person can be allowed to
become a judge in his own cause." In the oft- quoted case of Nair Service Society Ltd.
Vs. K.C. Alexander and Ors. (1968) 3 SCR 163, this Court held that a person in
possession of land in assumed character of owner and exercising peaceably the ordinary
rights of ownership has a perfectly good title against all the world but the rightful owner.
When the facts disclose no title in either party, possession alone decides. The court
quoted Loft's maxim 'Possessio contra omnes valet praeter eur cui ius sit possessionis (He
that hath possession hath right against all but him that hath the very right)' and said, "A
defendant in such a case must show in himself or his predecessor a valid legal title, or
probably a possession prior to the plaintiff's and thus be able to raise a presumption prior
in time". In M.C. Chockalingam and Ors. v. Manickavasagam and Ors. (1974) 1 SCC
48, this Court held that the law forbids forcible dispossession, even with the best of title.
In Krishna Ram Mahale (dead) by his Lrs. Vs. Mrs. Shobha Venkat Rao (1989) 4 SCC
131, it was held that where a person is in settled possession of property, even on the
assumption that he had no right to remain on the property, he cannot be dispossessed by
the owner of the property except by recourse to law. In Nagar Palika, Jind Vs. Jagat
Singh, Advocate (1995) 3 SCC 426, this Court held that disputed questions of title are to
be decided by due process of law, but the peaceful possession is to be protected from the
trespasser without regard to the question of the origin of the possession. When the
defendant fails in proving his title to the suit land the plaintiff can succeed in securing a
decree for possession on the basis of his prior possession against the defendant who has
dispossessed him. Such a suit will be founded on the averment of previous possession of
the plaintiff and dispossession by the defendant.
6. It is thus clear that so far as the Indian law is concerned the person in peaceful possession
is entitled to retain his possession and in order to protect such possession he may even
use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully
dispossessed of land may retake possession if he can do so peacefully and without the use
of unreasonable force. If the trespasser is in settled possession of the property belonging
to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take
the law in his own hands and evict the trespasser or interfere with his possession. The law
will come to the aid of a person in peaceful and settled possession by injuncting even a
rightful owner from using force or taking law in his own hands, and also by restoring him
in possession even from the rightful owner (of course subject to the law of limitation), if
the latter has dispossessed the prior possessor by use of force. In the absence of proof of
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better title, possession or prior peaceful settled possession is itself evidence of title. Law
presumes the possession to go with the title unless rebutted. The owner of any property
may prevent even by using reasonable force a trespasser from an attempted trespass,
when it is in the process of being committed, or is of a flimsy character, or recurring,
intermittent, stray or casual in nature, or has just been committed, while the rightful
owner did not have enough time to have recourse to law. In the last of he cases, the
possession of the trespasser, just entered into would not be called as one acquiesced to by
the true owner.
7. It is the settled possession or effective possession of a person without title which would
entitle him to protect his possession even as against the true owner. The concept of settled
possession and the right of the possessor to protect his possession against the owner has
come to be settled by a catena of decisions. Illustratively, we may refer to Munshi Ram
and Ors. Vs. Delhi Administration (1968) 2 SCR 455, Puran Singh and Ors. Vs. The
State of Punjab (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh
(1977) 1 SCC 188. The authorities need not be multiplied. In Munshi Ram & Ors.'s case
(supra), it was held that no one, including the true owner, has a right to dispossess the
trespasser by force if the trespasser is in settled possession of the land and in such a case
unless he is evicted in the due course of law, he is entitled to defend his possession even
against the rightful owner. But merely stray or even intermittent acts of trespass do not
give such a right against the true owner. The possession which a trespasser is entitled to
defend against the rightful owner must be settled possession, extending over a
sufficiently long period of time and acquiesced to by the true owner. A casual act of
possession would not have the effect of interrupting the possession of the rightful owner.
The rightful owner may re-enter and re- instate himself provided he does not use more
force than is necessary. Such entry will be viewed only as resistance to an intrusion upon
his possession which has never been lost. A stray act of trespass, or a possession which
has not matured into settled possession, can be obstructed or removed by the true owner
even by using necessary force. In Puran Singh and Ors.'s case (supra), the Court clarified
that it is difficult to lay down any hard and fast rule as to when the possession of a
trespasser can mature into settled possession. The 'settled possession' must be (i)
effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt
at concealment by the trespasser. The phrase 'settled possession' does not carry any
special charm or magic in it; nor is it a ritualistic formula which can be confined in a
strait-jacket. An occupation of the property by a person as an agent or a servant acting at
the instance of the owner will not amount to actual physical possession. The court laid
down the following tests which may be adopted as a working rule for determining the
attributes of 'settled possession' :
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i) that the trespasser must be in actual physical possession of the property over a
sufficiently long period;
ii) that the possession must be to the knowledge (either express or implied) of the owner
or without any attempt at concealment by the trespasser and which contains an element of
animus possidendi. The nature of possession of the trespasser would, however, be a
matter to be decided on the facts and circumstances of each case;
iii) the process of dispossession of the true owner by the trespasser must be complete and
final and must be acquiesced to by the true owner; and
iv) that one of the usual tests to determine the quality of settled possession, in the case of
culturable land, would be whether or not the trespasser, after having taken possession,
had grown any crop. If the crop had been grown by the trespasser, then even the true
owner has no right to destroy the crop grown by the trespasser and take forcible
possession.
8. In the cases of Munshi Ram and Ors.(supra) and Puran Singh and Ors. (supra), the Court
has approved the statement of law made in Horam Vs. Rex AIR 1949 Allahabad 564,
wherein a distinction was drawn between the trespasser in the process of acquiring
possession and the trespasser who had already accomplished or completed his possession
wherein the true owner may be treated to have acquiesced in; while the former can be
obstructed and turned out by the true owner even by using reasonable force, the latter,
may be dispossessed by the true owner only by having recourse to the due process of law
for re-acquiring possession over his property.
9. In the present case the Court has found the plaintiff as having failed in proving his title.
Nevertheless, he has been found to be in settled possession of the property. Even the
defendant failed in proving his title over the disputed land so as to substantiate his
entitlement to evict the plaintiff. The Trial Court therefore left the question of title open
and proceeded to determine the suit on the basis of possession, protecting the established
possession and restraining the attempted interference therewith. The Trial Court and the
High Court have rightly decided the suit. It is still open to the defendant-appellant to file
a suit based on his title against the plaintiff-respondent and evict the latter on the former
establishing his better right to possess the property.
10. The learned counsel for the appellant relied on the Division Bench decision in Sri
Dasnam Naga Sanyasi and Anr. Vs. Allahabad Development Authority, Allahabad and
Anr. AIR 1995 Allahabad 418 and a Single Judge decision in Kallappa Rama Londa Vs.
Shivappa Nagappa Aparaj and Ors. AIR 1995 Karnataka 238 to submit that in the
absence of declaration of title having been sought for, the suit filed by the plaintiff-
96
respondent was not maintainable, and should have been dismissed solely on this ground.
We cannot agree. Sri Dasnam Naga Sanyasi and Anr.'s case relates to the stage of grant
of temporary injunction wherein, in the facts and circumstances of that case, the Division
Bench of the High Court upheld the decision of the court below declining the
discretionary relief of ad-interim injunction to the plaintiff on the ground that failure to
claim declaration of title in the facts of that case spoke against the conduct of the plaintiff
and was considered to be 'unusual'. In Kallappa Rama Londa's case, the learned Single
Judge has upheld the maintainability of a suit merely seeking injunction, without
declaration of title, and on dealing with several decided cases the learned Judge has
agreed with the proposition that where the suit for declaration of title and injunction is
filed and the title is not clear, the question of title will have to be kept open without
denying the plaintiff's claim for injunction in view of the fact that the plaintiff has been in
possession and there is nothing to show that the plaintiff has gained possession by any
unfair means just prior to the suit. That is the correct position of law. In Fakirbhai
Bhagwandas and Anr. Vs. Maganlal Haribhai and Anr. AIR 1951 Bombay 380 a
Division Bench spoke through Bhagwati, J. (as his Lordship then was), and held that it is
not necessary for the person claiming injunction to prove his title to the suit land. It
would suffice if he proves that he was in lawful possession of the same and that his
possession was invaded or threatened to be invaded by a person who has no title thereof.
We respectfully agree with the view so taken. The High Court has kept the question of
title open. Each of the two contending parties would be at liberty to plead all relevant
facts directed towards establishing their titles, as respectively claimed, and proving the
same in duly constituted legal proceedings. By way of abundant caution, we clarify that
the impugned judgment shall not be taken to have decided the question of title to the suit
property for or against any of the contending parties.
11. No fault can be found with the judgment and decree appealed against. The appeal is
devoid of any merit and is dismissed.
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BHANWAR LAL AND ANR. v DHANRAJ

Bhanwar Lal and Anr: Appellant
v
Dhanraj : Respondent
AIR 1973 Raj 212, 1972 WLN 999
K Singh J.
1. The second appeal before me is by the defendant. The subject matter of the litigation is
the construction of a shop by the defendant on a Chabutra in the market of Pali.
2. The plaintiff-respondent has a shop in the same market. The plaintiff's case in brief was
that the construction of the shop over the Chabutra by the defendant has caused
discomfort amounting to nuisance to the plaintiff in multifarious ways; firstly it resulted
in diminishing the light and air which the plantiffs' shop used to receive when the
Chabutra was open; secondly the impugned construction created an obstruc-tion to the
flow of foul water in a nearby narrow lane, which would consequently be absorbed in the
lane itself and emitting foul smell; thirdly as a result of this construction the foul air
caused by urination spoils from dogs or human excreta was prevented from spread-ins
out from the mouth of the lane as hithertofore. On the other hand, the direction of the
flowing-out foul air from the lane was changed and the same would consequently invade
the plaintiffs' shop lastly it was averred that on account of the impugned construction the
view of the, plaintiffs' shop was obstructed.
3. The litigation has a chequered history. To start with when the construction of the shop
was commenced the plaintiff brought a suit in 1955 for an injunction restraining the
defendant from putting up the construction. However, as the construction was completed
before the conclusion of the suit, the plaint was amended. There was a second
amendment of the plaint as well and the case was fought finally on the basis of the
second amended plaint.
4. The suit was decreed by the learned Civil Judge, Pali, on 17-9-1959. The learned Civil
Judge ordered that the defendant shall pull down at his own expense all the construction
made by him on the Chabutra (platform) and shall keep the Chabutra open with no
construction over it. In particular the learned Civil Judge ordered the demolition of the
shop, balcony and the staircase constructed by the defendant as also the step that was put
on the khalsa land in front of the plaintiff's shop.
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5. Aggrieved by the judgment and decree of the learned Civil Judge, the defendants
presented an appeal to the court of learned District Judge. Pali. The learned District Judge
(Shri M.R. Purohit) came to the conclusion that no actionable nuisance had been made
out by the plaintiff. The learned Judge, inter alia, observed that the plaintiff had not cared
to examine any Health and Sanitation Expert in order to show that the construction made
by the defendant would in any manner constitute nuisance but he had on the contrary
produced only lay men, seven. In number, who had deposed that the construction had
more or less brought in the words of the learned Judge "hell on earth". In the result the
learned Judge accepted the defendant's appeal, set aside the judgment and decree of the
learned Civil Judge and dismissed the plaintiffs' suit.
6. Against the judgment and decree of the learned District Judge the plaintiffs brought an
appeal to this court The appeal came up for hearing before Hon'ble Beri J. Beri J. felt that
the learned District Judge was in error in thinking that in the absence of any scientific
evidence, the evidence of laymen was not helpful or decisive for determining the question
whether the foul smell caused or added to the discomfort of the neighbour or whether on
account of a particular construction the foul air was diverted or not. Apart from this Beri
J, found that the learned District Judge had not come to grips with the case and had not
carefully gone through the statements of the witnesses in this behalf. His Lordship
pointed out that the learned District Judge had wrongly thought that there were 7
witnesses on the side of the plaintiffs, who were deposing to nuisance. Two of the
witnesses namely PW. 6 Mishri Mal and PW. 7 Munna Lal were only witnesses about the
service of processes and had not stated anything about the alleged nuisance. In the result,
therefore, the plaintiff's appeal was allowed, the judgment and decree of the learned
District Judge were set aside and he was directed to decide the appeal afresh.
7. While considering the first point the learned Judge observed that the statements of the
plaintiffs' witnesses had not been shaken in the least in cross-examination and in the light
of the site Inspection what they deposed was worthy of belief. The learned District Judge
went on to observe that even the defendant's witnesses had to admit that the lane being
open 3s spoiled by the dogs and also on account of the water discharged from the rooms
contiguous to the lane. It was further admitted by the defendant's witnesses that the lane
was used for urination by people coming that side. The learned District Judge, therefore,
came to the conclusion that foul smell was emitted from this Khalsa lane.
8. On the second point the learned Judge held that previously foul air of the lane directly
passed towards the north after crossing over the Chabutra (platform) of the plaintiff but
after the new construction it had been obstructed from coming out towards the north and
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was diverted towards the West with the result that bad smell causes discomfort to persons
sitting on the Chabutri of the plaintiff and outside the shop door.
9. On the third question the learned Judge reached the conclusion that as a result of the foul
smell it had become very difficult for the plaintiff and others to suit on the Chabutri for
carrying on the business.
10. Lastly the learned Judge considered the question whether the whole of the construction
made by the defendants on their Chabutra should be ordered to be demolished or only the
demolition of a portion of it would be sufficient to do away with the new nuisance caused
to the plaintiff The learned Judge thought that if the staircase as a whole with the step 'K'
and the wall of the shop or verandah between the portions E to F as per site map Ex. 3
were demolished and removed and the portion of the shop between marks A-N is
permanently kept open, the foul air of the lane would pass towards north and would not
be diverted towards the Cha-butari of the plaintiff. In the result the learned District Judge
allowed the appeal in part and modified the decree of the learned Civil Judge by ordering
only the demolition of the staircase standing between the points E-F, the roof of tha
Verandah or shop and the step 'R' and further issued a permanent injunction that no new
construction shall be made or any door with shutters or any obstruction shall be put up on
the Chabutra by the defendant at the places from where the staircase and the wall were
being ordered to be removed.
11. It is in these circumstances that the defendants have come up in appeal to this court.
12. For a proper appreciation of the arguments I may briefly describe the location of the
Impugned chabutra and the construction thereon as also of the lane and the plaintiffs'
shop, with reference to the site map dated 4-3-1957 (Ex. 3) which is an admitted
document.
13. The shop of the plaintiff is situated in the Bazar which runs from East to West. If one
enters this Bazar from the East then the plaintiffs' shop would be on the left. The door of
the shop is towards the North. The shop's dimensions are roughly East-West 7 1/4' and
North-South 10 1/4'. In front of the shop there is a Chabutra of 1 1/4' width running East
to West. The Khalsa lane of which mention has been made, is just on the East of the
plaintiffs' shop and runs North to South. The lane is 2'4" in width. It runs along the length
of the plaintiff's shop East to West and beyond it to a further length of 5' or 7' towards
South and then the lane is closed by a wall which according to the learned District Judge,
who inspected the site was 4' or 5' high. Just on the back side of the plaintiff's shop there
is another Khalsa lane running East to West which meets the aforementioned lane at the
South-East corner of the plaintiffs' shop. This lane also is a narrow one. On the Eastern
100
side of the disputed lane is the back side of the shops which open in what is known as
Sarrafa Bazar.' This Sarrafa Bazar runs North, to South. The defendant's shop on the back
side of which the disputed construction was made opens in the Sarrafa Bazar and had its
door towards the East. The right hand side of this shop while entering runs parallel to the
Bazar running East to West in which the shop of the plaintiff is situated. The disputed
Chabutra was 4' from East to West and 7'4" from North to South. There was a space of
2'6" between the Northern side of the plaintiffs' shop and the Chabutra. The Chabutari of
the plaintiffs' shop which was just ten inches in height join-ed the South-West corner of
the disputed Chabutra. The defendant has constructed the staircase in front of the mouth
of the disputed Khalsa lane and by it the roof of the defendant's shop is reached. On the
Northern side of this staircase the defendant had constructed a shop on the Chabutra.
14. Now in assailing the judgment and decree of the learned District Judge, learned counsel
for the defendant contends that no cause of action was disclosed against the defendant.
Learned counsel argued that defendant had not created the nuisance in the lane or
otherwise creates any nuisance on his premises. The defendant, he urges, had only
exercised his right of ownership over his property by making the construction and such a
construction could not be taken to create any nuisance to the plaintiff. Learned counsel
maintained that such a nuisance was not known to law and therefore, the learned District
Judge was in serious error in decreeing the plaintiffs' suit.
15. As regards the cases cited by the learned counsel for appellant, learned counsel for
respondent, submitted that those cases related to other situations. He pointed out that
cases regarding putting up embankments to prevent flood waters coining to one's
property were not applicable. He emphasised that even when flood water comes on one's
land that cannot be let out by constructing any channel or a hole in the embankment to
another's land or property. He referred to M. and S. M. Rly. Co. Ltd. v. Maharaiah of
Pithapuram, AIR 1937 Mad 703. Before proceeding further I may ance again refer to the
judgment of Beri J. with a view to seeing what questions survived for consideration by
the learned District Judge. Whatever has been decided by Beri J. will be taken to be final
for the present purposes. Beri J. formulated the following four points in the light of the
rival contentions raised by the learned counsel for the parties:
"(1) Whether no tortious liability arises against the defendants because they are merely
making a lawful use of their own land.?
(2) Whether the learned District Judge was in error in laying undue emphasis on scientific
evidence and has for that reason not examined the evidence fully or with exactitude and
which has resulted in a misreading of evidence?
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(3) Whether the plaintiff is entitled to complain of the alleged nuisance on account of the
flow of water over his small platform in absence of the direct pleading on that account?
(4) Whether the construction on the Chnbutari causes such obstruction that the foul air is
diverted on that account from the narrow lane occasioning a nuisance to the plaintiff?"
16. Having carefully read the judgment I am satisfied that the question whether the
impugned construction caused such an obstruction that the foul air was diverted on that
account from the narrow lane and caused any nuisance, to the plaintiff was open for
decision by the learned District Judge. Under point No, 1 the passage that I have
extracted also suggests the same thing. What was negatived was the broad defence that
by using his own property the defendant was absolved in tortious liability.
17. The term 'nuisance' is incapable of an exact definition as observed in Winfield on Tort
(VI Edition) at p. 536. But its concept is well understood. As the Author has observed it
may be described as "unlawful interference with a person's use or enjoyment of land, or
of some right over, or in connection with it." It is a common law wrong having a long
history. There must be interference with the use or enjoyment of land, or of some right
over or in connection with it, causing damage to the plaintiff. The forms of this are
innumerable. Noise, smells pollution of air or water are the most usual instances, but
there are many others. The two main heads are injury to property and interference with
personal comfort. The escape of fumes, which kill vegetation and cattle, is an illustration
of the first, and excessive tolling of church bells of the second. But whatever be the type,
it does not follow that any harm constitutes a nuisance. The whole law on the subject
really represents a balancing of conflicting interests. Some noise, some smell, some
vibration, everyone must endure in any modern town, otherwise modern life there would
be impossible. It is repeatedly said in nuisance cases that the rule is sic utero tup ut
alienum non laedas, but the maxim is not very informative. If it means that no man is
ever allowed to use his property so as to injure another, it is palpably false. If it means
that a man in using his property may injure his neighbour but not if he does so
unlawfully, it is not worth stating. In fact the law repeatedly recognises that a man may
use his own so as to injure another without committing a nuisance. It is only if such use is
unreasonable that it becomes unlawful. The homely phrases, "Give and take" "live and let
live" are much nearer the truth than the Latin Maxim. "A balance has to be maintained
between the right of the occupier to do what he likes with his own. and the right of his
neighbour not to be interfered with."
18. Where the interference is with personal comfort, it is not necessary in order to establish a
nuisance that any Injury to health should be shown. It is enough that there is material
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interference with the physical comfort of human existence reckoned "not merely
according to elegant or dainty modes and habits of living, but according to plain and
sober and simple notions among the English people." The Author proceeds to say that
one of the chief tests is reasonableness -- "what is reasonable according to the ordinary
usages of mankind in society or more correctly in a particular society" and it is important
to distinguish this term in the law of nuisance from its use elsewhere in the law of tort,
especially in negligence. Reasonableness plays an important part in determining whether
or not there has been a nuisance. Just as in England Courts deal with a case according to
English peoples habits of living, in India we have to go by the habits of Indian people.
19. It is common knowledge that in busy Bazars where the local authorities have not
provided urinals or urinals in sufficient number or where the urinals are so dirty, people
generally use lanes near the Bazar for urination. Here the habits of the Indian people
differ from English people, who are not used to urination by the side of the Bazar or at
places which are frequented by people. Sense of Indian people for cleanliness and
sanitation is by and large not developed to that extent.
20. In AIR 1943 Lah 306 (equivalent to 209 Ind Cas p. 462) the defendant was alleged to
have built a latrine and a 'Mori' or drain. The door of the plaintiff's shop opened into a
narrow lane through which only the latrine of the defendant was accessible. The removal
of the stinking nightsoil through the lane caused physical discomfort to the occupant of
the plaintiffs shop. The defendant did not claim any easement to remove the nightsoil by
this lane. The question was not whether the Sandas i.e. latrine itself emitted any foul
smell when it was shut but whether the sandas could be used as such without causing
material discomfort to the occupant of the shop. The sandas must be cleaned once or
twice a day and if the sweeper with stinking filth must pass by the shop of the plaintiff,
the sandas must be held to be a nuisance. It was in this context that the learned Judge
had observed that the question whether certain proved facts establish a nuisance or not is
a question of law.
21. In the present case the question whether the lane is rendered dirty and emits foul air is not
open here. Similarly the question that persons occupying the plaintiff's shop are made
uneasy or discomfortable as a result of the foul smell coming from the lane is not open
to question. There is also no basis for holding that the defendant contributes in making
the lane filthy in any manner. It also cannot be argued that with the construction of the
shop on the Chabutra the foul air that was free to pass from over the Chabutra hitherto
would not now pass in that volume and a portion of it would be diverted towards the
West in the direction of the plaintiffs shop. Therefore, under the circumstances, the only
question that now remains for decision is whether this amounts to nuisance.
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22 To be precise one has to put himself and answer the following two questions: (1) whether
the defendant had created any nuisance by interfering with the natural process of
abatement or diminution of the nuisance existing in the lane by making of the impugned
construction; (2) what is the degree of interference and whether it is substantial so as to
afford a cause of action?
23. Now the defendant has not generated any foul air on his own property or in the lane. It is
the result of the want of sense of cleanliness or decency on the part of the people who
urinate in this lane in the Bazar; that too as I have observed perhaps on account of lack
of requisite number of urinals or such urinals as would be clean so that the people may
be induced to use them. Be that as it may, it cannot be said that the nuisance originates
from the property of the defendant. One can-not be very meticulous about the direction
or the volume of the foul air from the lane like the present one. Urine, human excreta or
spoils of animals gene-rate a number of gases, some of them being lighter than air would
have the tendency of going up vertically, others may remain nearer the ground and
spread laterally according to the gust of wind at the moment. Direct heat of the sun may
also play its part in drying up foul substances and if there is no sunshine or sunshine is
less as during rains or in winter it would aggravate the emission of the foul air. "What
volume of foul air would be diverted by the impugned construction towards the
plaintiffs' shop and to what extent discomfort would thereby be increased is, to my mind,
de-pendent on factors which are imprecise. Witnesses have no doubt said that one
cannot sit on the Chabutra of the plaintiff or near his door but the business has continued
on the plaintiffs' shop all along though the present litigation started 17 years back. In
such a state of inadequacy of material for judging and balancing the rival interests of the
defendant to build on his property with the expectation of reasonable comfort by the
plaintiffs I find myself unable to hold that the act of the defendant constitutes nuisance
in law. In the circumstances I am unable to uphold the conclusions of the court below.
25. In the result I allow the appeal set aside the judgment and decree of the learned District
Judge dated 16-5-66 and hereby dismiss the suit. The parties are, however, left to bear
their own costs throughout.
Learned counsel for the respondent prayed for grant of leave for appeal under Section
18 of the Rajasthan High Court Ordinance. 1949, in view of the importance of the
question involved, the leave is granted.
104
PIJUSH KANTI DATTA v. MANGILAL GIDIA

Pijush Kanti Datta: Plaintiff
v.
Mangilal Gidia: Defendant
AIR 1987 Cal 136
A K Sengupta J.
1. The plaintiff, a practicing Barrister, his wife and his brother-in-law are stated to be the
joint owners of the premises where the plaintiff resides with his family in the first floor of
the said premises. This suit has been instituted by the plaintiff for the damages allegedly
suffered by the plaintiff by reason of certain alleged defamatory words written by the
defendant, who is a tenant of the second floor of the said premises.
2. The case of the plaintiff is that the said alleged complaint as recorded in writing and
signed by the defendant dt. June 2, 1984 as written of and referring to and in relation to
the plaintiff is false, mala fide and malicious and the defendant by the words used in the
said complaint as referring to and in relation to the plaintiff expressly meant and
understood to mean that the plaintiff is a virulent criminal and has committed inter alia,
offence or offences, under the Indian Penal Code, of criminal trespass, criminal assault
and/or having outraged the defendant's wife, and her modesty as a woman and that, in
fact, the plaintiff is a criminal in the guise of a Barrister who requires to be apprehended
forthwith by the police to prevent commission of further offences by the plaintiff from
befalling the defendant and his family. It is alleged that the said complaint dt. June 2,
1984 as made with the Police Station was made by the defendant deliberately, intently,
falsely and out of motive, actuated by malice, knowing it to be false, mala fide and with
express malice therein with a view to destabilise, discredit, disrepute, defame and injure
the plaintiff, he has been cultivating for the last over 22 years.
3. The defendant also instituted a suit wherein the defendant filed a petition of injunction
and obtained an ex parte order. The owners of the said premises who are defendants in
the said suit filed an appeal against the said ex parte order which was vacated by the
judgment and order dt. 17-9-84. The further case of the plaintiff is that the defendant
deliberately, intently, motivatedly and maliciously wanted to harm and injure and harmed
and injured the plaintiff in his social and professional standing which would also be
evident from another purported untrue and maliciously false written complaint dt. June
11, 1984 made and sent by the defendant with copies thereof to the Deputy
Commissioner of Police (South) the Home Secretary, Government of West Bengal, and,
105
on top of it, to the Hon'ble Chief Minister of West Bengal. The said purported complaint
dt. June 11, 1984 was served upon the defendants in the said Title Suit on or about
September 20, 1984.
4. It is alleged that the defendant by the said alleged complaints respectively dt. June 2,
1984 and June 11, 1984 being expressly false, mala fide, malicious and defamatory,
designed and motivated to falsely project and, indeed, projected the plaintiff as a culprit
and a criminal of having committed offence or offences punishable under the I.P.C. and
the defendant wanted the police to take cognizance thereof and to take the plaintiff into
police custody forthwith. It is also contended that by reason of the aforesaid and by
reason of the venom associated with the words used in the said complaints and each of
them and as they are understood in common parlance, being clearly defamatory of the
plaintiff and in relation to him, the defendant clearly meant and/or was understood to
mean that the plaintiff is a daring abominable criminal of despicable character who could,
as falsely and maliciously alleged, even beat up one's wife and that but for the plaintiff's
arrest and but for the police taking cognizance of the said complaints or either of them the
defendant and the members of his family shall always live in danger and their lives would
be at stake, with the plaintiff residing in the same house. It is also alleged that by reason
of the defendant having positioned and projected the plaintiff as aforesaid, the plaintiff
has been immensely defamed, discredited and injured in his social standing as well as
professional, and indeed, the defendant has lowered, humbled and humiliated the plaintiff
in the estimation of the right thinking members of the society generally and in the
community of the plaintiff's profession particularly. It is further alleged that the
defendant's actuated motive and motivation in lodging the said complaints has, thus, cast
a telling effect on the plaintiff being shunned or avoided by the company and the
profession he keeps and cultivates. In the consequences aforesaid, the defendant has
become and is liable to compensate and/or indemnify the plaintiff for defaming and
injuring him in the matter as stated hereof which the plaintiff claims and assesses at Rs.
30 lakhs.
5. Mr. Nirmal Mitra, learned Counsel for the plaintiff has submitted that an action in tort is
maintainable per se on the publication itself, without proof of any pecuniary damages
being suffered. The law presumes that some damage will flow in the ordinary course of
things from the mere invasion of his absolute right to reputation. He has contended that in
this case the plaintiff has not relied on any actual loss and accordingly no evidence has
been given on actual loss having been suffered by the plaintiff. Mr. Mitra has contended
that in the present case the defamatory words charging the plaintiff with the commission
of any crime, which may subject him to imprisonment or corporal punishment, but not
where the crime is punishable by fine only are actionable without proof of special
106
damage. He has relied on a decision in the case of Webb v. Beavan reported in (1883) 11
QBD 609. There the Court held as follows : "The words which impute any cirminal
offence are actionable per se. The distinction seem a natural one, that words imputing that
the plaintiff has rendered himself liable to the mere infliction of a fine are not slanderous,
but that it is slanderous to say that he has done something for which he can be made to
suffer corporally."
6. It is now well settled that a man commits the tort of defamation when he publishes to
third person matter containing an untrue imputation against the reputation of another. The
defendant in this case entered appearance but did not file any written statement. Having
regard to the provisions of Order 8, Rule 5, Sub-rule (2) of the Civil P.C. the statement
contained in the plaint shall be taken to be admitted. Any imputation which may tend to
lower the plaintiff in the estimation of right thinking members of society generally or to
expose him to hatred contempt or ridicule is defamatory of him. The publication of words
defamatory of plaintiff gives rise to a prima facie cause of action. The taw presumes in
the plaintiffs favour, as rightly contended by Mr. Mitra that the words are false, unless
and until the defendant proves the contrary. The law presumes some damages will follow
from the publication of a libel. Defamatory words charging the plaintiff with the
commission of any crime, which may subject him to imprisonment or corporal
punishment but not where the crime is punishable by fine only are actionable without
proof of special damage : see Webb v. Beavan (1883) 11 QBD 609. As indicated earlier
the plaintiff was charged with offence which, if proved, would have subjected him to
imprisonment. On the facts and circumstances of this case the plaintiff is entitled to
damages.
7. The next question arises as to what should be the quantum of damages to be awarded, if
at all, in this case. The amount of damages is entirely to the discretion of the Court and no
rule as to the amount to be awarded has been or can be laid down and each case must
necessarily depend upon its own peculiar or particular facts. But it is well settled now that
in assessing damages the character of the defamatory words and the circumstances
attending its publication are to be taken into account. The Court may take into account
the rank and position in society of the parties, the mode of publication selected, the extent
and long continuance of the circulation given and the defamatory words used, etc. The
question, in this case, is whether the defandant has just overstepped the limit or it has
been made with an object to defame the plaintiff. The circumstances under which the
defamatory words have been written by the defendant have been indicated earlier. It is
true that the defendant has not appeared in this case to controvert what the plaintiff has
stated in the plaint. But the fact remains that there was a dispute between the landlord and
the tenant and the Court cannot overlook such fact or the Court may also take judicial
107
notice of the fact that now a days the relationship between the landlord and the tenant is
not very cordial and there is always stress and strain in such relationship. The defendant
has made a complaint and in that complaint he had written certain words about the
plaintiff. Similarly also in the letters addressed to the Government authorities concerned,
he had written certain words about the plaintiff. But in those letters nowhere the
plaintiff's identity as such has been mentioned. It has not been stated that the plaintiff is a
Barrister-at-law. Whoever has read that complaint or the letters would not know that the
plaintiff is a practising Barrister-at-Law or what is his social status or how far he has been
defamed by this process. To a great extent, in ascertaining the damages, one has to take
into account the context in which the publication has been made. Once it has been done
by the defendant when, according to the defendant, he was without any water. It may be
true or it may not be true. But, it at least shows that there was some dispute regarding the
supply of water or something like that. In the judicial proceedings, he relied on the letters
and those letters have been read only by the person who came across with this
proceeding. Excepting those, the persons who knew of the incident or who have to deal
with the plaintiff would only be able to identify him as the person referred to in the
complaint or in the said letters. No one who deals with the plaintiff has come across with
that complaint or the letter. The plaintiff has not been identified as an Advocate or a
Barrister-at-Law. Those who had read the complaint or the letters, usually get such type
of complaints or letters. It will not make any impression upon them particularly when all
such letters must have been either shelved or thrown into the waste paper basket by the
authorities. The only identification which has been made is that the plaintiff is the
landlady's husband.
8. Mr. Mitra has relied on a judgment of the Bombay High Court in the case of R.K.
Karanjia v. Krishnaraj M. D. Thackersey, . In that case at para 42 the Bombay High
Court has quoted a passage of Lord Justice Diplock in the case of Me. Carey v.
Associated Newspapers Ltd. (1964) 3 All ER 947 at p. 959. The said passage reads as
follows :"In an action for defamation, the wrongful act is damage to the plaintiffs
reputation. The injuries that he sustains may be classified under two heads : (i) the
consequences of the attitude adopted to him by other persons as a result of the diminution
of the esteem in which they hold him because of the defamatory statement, and (ii) the
grief or annoyance caused by the defamatory statement to the plaintiff himself. It is
damages under this second head which may be aggravated by the manner in which, or the
motives with which, the statement was made or persisted in. There may also be cases
where Lord Devlin's second principle is applicable, as, for example, if a newspaper or a
film company as in Youssoupoff v. Metro-Goldwyn-Mayer-Pictures Ltd. (1934) 50 TLR
581 has in the view of the damage awarding tribunal, deliberately published a defamatory
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statement in the expectation of increasing its circulation and profits by an amount which
would exceed any damages awarded by way of compensa-tion alone."
9. In this case no damage has been claimed under the first head, that is to say, the
consequence of the attitude adopted by other persons to the plaintiff as a result of
diminution of the esteem in which they held him because of the defamatory statement.
The damage, if any, in this case will be on the second count, that is to say, the agony or
annoyance caused by the defamatory statement to the plaintiff himself. In the deposition
also the plaintiff has said that he mentally suffered agony for the publication which has
been made of him in those two letters. Indeed, it is very difficult to assess the quantum of
damages. The mental agony which the plaintiff may have suffered cannot have any
objective manifestation, excepting that he has not been able to look after his work
properly for sometime, which is the evidence before this Court, there cannot be any other
criterion to judge what should be the compensation for the mental agony suffered by the
plaintiff in this case. The task of the Court is to award "fair and reasonable
compensation". In my view having regard to the facts and circumstances of this case and
the context in which those words have been published, the plaintiff is only entitled to
nominal damages and nothing else.
10. Having regard to the entirety of the circumstances of the case, I would award damages
assessed at Rs. 1,000/-. There will be a decree for a sum of Rs. 1,000/- in favour of the
plaintiff. The plaintiff will also be entitled to cost assessed at 30 gms.
109
SNM ABDI v. PRAFULLA KR. MAHANTA AND ORS

Snm Abdi: Appellants
v.
Prafulla kr. Mahanta and Ors: Respondents
AIR 2002 Gau 75
J Sarma, A Saikia , JJ
1. The suit was filed by the respondent No. 1 who was earlier the Chief Minister of Assam
claiming that he was defamed by an Article published in 'Illustrated Weekly of India'
Weekend December 8-9/ 91.
2. That Article is quoted below:"Money and Muscle power The leadership of Prafulla Kr.
Mahanta, deposed Chief Minister of Assam, is under serious threat from an influential
sectiion of the Asom Gana Parishad, following the imposition of President's rule. Since
1985, Mahanta had remained not only the Chief Minister but also the President of the
AGP.The happiest person in the wake of the presidential proclamation of November 28
'overthrowing' the AGP government was Home Minister Bhrigu Phukan, according to
reliable sources have, Phakan and Mahanta shared a troubled relationship since 1987
when serious differences cropped up between the two, Phukan is reported to have
commented recently; "Prafula has dug his own grave by patronising ULFA and inviting
Central rule".
3. Significantly, Phukan not only enjoys the support of sizeable numbers of AGP legislators
and party leader but AGP M. Ps too. This group is determined to challenge Mahahta's
leadership in the AGPs organistaional election scheduled for January.
4. Phukan has described the AGP government as the 'most' corrupts regime in the country in
his conversion with loyalists. He had dubbed Mahanta the country's most inefficient'
Chief Minister who 'survived for five years with the help of money and muscle power'.
Phukan, who enjoy the cleanest reputation among AGP ministers and leaders, has also
accused Mahanta of rewarding 'corrupt and immoral' cabinet colleagues.
110
5. Phukan claims that he possesses official correspondence which proves that several
ministers and senior AGP leaders obstructed the home minister each time from action
was contemplated against ULFA. In the 1985 polls, the AGP won only 71 of the 120
seats in the assembly. With fighting reaching new heights, it is not clear whether the AGP
will be able to match even its 1985 performance when electipn are finally held."
6. It is stated herein that when this article was published whose name was mentioned as the
source of the article, he wrote a letter dated 13.12.1999 denying his involvement in the
article. He has also denied the following statements "Prafulla has dug his own grave by
partonising ULFA and inviting Central rule" and "also that AGP Government as the most
corrupt regime in the country". He even by this letter stated that he never met Mr. Abdi
during his visit to Guwahati. Thereafter the suit was filed on the ground that the
reputation of the plaintiff was harmed and injured by that article. There was also a request
to publish this letter on the next issue in the News paper by Sri Bhrigu Kr. Phukan but the
same was not done.
7. The allegation made in the Plaint in paragraph 10 wherein is stated inter alia are as
follows :"10..... The serious allegations and imputations made against the plaintiff in the
said article have created a bad feeling among the general public against the plaintiff and
have also damaged his name, fame and reputation. The said article had contained serious
baseless, imaginary and concocted allegations against the plaintiff and the same amounts
to defamation."
8. Notice was issued to the defendants and Mr. P. Pathaik and Mr. R.K. Jain appeared by
filing two vakalatnarnas for all the defendants. But after filing of the Vakalatnamas the
defendants did not file any W.S. and as such, the suit proceeded exparte and on 16.9.1992
the plaintiff examined himself as a witness. He exhibited the article written in the
Newspaper as well as the letter written by Sri Bhrigu Kr. Phukan and he deposed
regarding the loss of reputation suffered by him. He deposed that on December 8.9.1990
published the article in the 'Illustrated Weekly of India' with the heading of 'Money and
Muscle Power' with some false and defamatory allegation with an intention to lower the
111
reputation and prestige of the plaintiff and this article was widely circulated in India in
other Newspapers to damage/tarnish the image of the parties as well as the plaintiff. The
learned Asstt. District Judge on consideration of the materials on record came to a finding
that the article is per se defamatory and thereafter assessed the compensation at Rs.
50,00,000 and accordingly decreed the suit. Hence the appeal.
9. We have heard Mr. B.P. Katakey, learned counsel for the appellant and Mr, S.K. Medhi
for respondent No. 1 and Mr. H.N. Sarma, learned Sr. Counsel for respondent Nos. 2 and
3.
10. The law regarding defamation is now well settled. The law is that in order to be
defamatory a publication must tend to lower the plaintiff in the opinton of men whose
standard of opinion the Court can properly recognise, or tend to induce them to entertain
an ill opinion of him. However, the plaintiff need not show a tendency of the imputation
to prejudice him in the eye of every one in the community or all of his assiciates, but it is
suffice to establish that the publication tends to lower him in the estimation of a
substantial, respectable group, even though they are a minority of the total community or
of the plaintiffs associates. The law relating to defamation is a limitation upon the
Constitutional guarantee of freedom of speech and of the press, and the vagaries and
complex structure of such law, as it exists today, is to a large extent a direct result of the
friction between them, as a restriction on untrammeled freedom of expression, and the
highly cherished rights of freedom of speech and of the press. The question of reputation
and how it is cherished by a person that came up for consideration before the Apex Court
in Kiran Bedi & Jinder Singh v. Committee of Inquiry (SC-714) where the Supreme
Court quoted Bhagwad Gita and pointed out "Akirtinchapi Bhutani Kathaishyanti te a
vyayam, Sambhavitashya Chakirtir Maranadatricchyate (Men will recount they perpetual
dishonour, and to one highly esteemed, dishonour exceedeth death.)
11. In paragraph 24 of the judgment the Supreme Court pointed out as follows:"24 .... The
right to the enjoyment of a good reputation is a valuable privilege, of ancient origin, and
necessary to human society, as stated in Libel and Slander Section 4 and this right is
within the constitutional guarantee of personal security as stated in Constitutional Law.
112
Section 205, and a person may not be deprived of this right through falsehood and
violence without liability for the injury as stated in libel and slander Section 4"
12. In paragraph 25 of the Judgment the Supreme Court quoted American Law Reports - 55
page 171 in D.F. Marion v. Davis and pointed out as follow :"25. The right to enjoyment
of a private reputation, unassailed by malicious slander is of ancient origin, and is
necessary to human society. A good reputation is an element of personal security, and is
protected by the Constitution equally with the right to the enjoyment of life, liberty and
property."
13. So we find that the learned Assstt. District Judge is correct in holding that the Article
published (quoted above) is defamatory in nature and harmed the reputation of the
plaintiff.The only defence in such a situation is that if such statement is correct he is not
liable, but he had to do so by filing a written statement to establish it as the burden being
on him but in the present case the defendants did not file written statement and did not
adduce any evidence in support of the article published.
14. The next question is that what would be the amount of compensation. In deciding the
question of compensation in such a situation the Court must take into consideration the
following things:
(1) the conduct of the plaintiff;
(2) his position and standing;
(3) the nature of libel;
(4) the absence or refusal of any retraction or apology ; and
(5) the whole conduct of the defendant from the date of publication of libel to the date of
decree ;This aspect of the matter is no longer res integra and was considered in a large
number of cases. In the case of State of Sabah in Malasia, a libellious article was
published against the plaintiff who was the Chief Minister of State of Sabha in Malasia.
The defamatory article was in a book published and authorised by the first defendant
relating to the plaintiff's conduct in acquiring the site of the building for his party
headquarters of which he was the President by exchanging prime timber land with the
owner of the site. It was alleged that by this exchange the plaintiff acquired 50% of the
share of the building, the other 50% being held by another members of the family. It was
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also alleged that on his 50th birth he had received gifts amounting to $ 3.4 millions and
his wife was presented with a necklace worth $ 1.5 million.
15. The last article described the un-Islamic attitude of the Plaintiff in choosing a Friday, a
Muslim holy day to declare open a Chinese temple, an action ill-befitting of a Muslim
leader. The Court came to a finding that the defendant No. 1 had in motive in publishing
the libel just before the general election, it can only be motivated by malice and the libels
were perpetrated for political and financial gains. They have taken advantage of the
situation by depicting the plaintiff in the worst possible light. They acted deliberately and
recklessly not carrying for the truth nor the distress it would cause and the harm that
would be inflicted on the personal and political reputation of the plaintiff.
16. As pointed out by Salmond damages are of four kinds:(1) nominal or real;(2) real
damages ;(3) general or special damages ;(4) compensatory, aggravated and exemplary
damages ;There are number of cases on this point. The following decisions are look at by
us :(1) AIR - 1957 (K.P. Narayanan v. Mahendra Singh), (2) AIR, 1961 - 254 (Narayanan
v. Narayana) and (3) AIR 1956 Nag-146.
17. Considering all the aspects of the matter and considering the evidence on record, we
allow this appeal in part and reduce the amount of damages to Rs. 5,00,000 (Rupees five
lakhs).
The appeal shall stand dismissed.
114
Dr. C.B. SINGH v. THE CANTONMENT BOARD, AGRA

Dr. C.B. Singh: Plaintiff
v.
The Cantonment Board, Agra: Defendant
AIR 1974 All 147
M.N. Shukla, J.
1. Dr. C.B. Singh instituted suit No. 222 of 1955. He was at that time a Professor and Head
of the Department of Surgery in the Medical College, Agra and a renowned Surgeon,
having an extensive practice, Dr. R.V. Singh instituted suit No. 224 of 1955. He was at
that time a Professor of Clinical Surgery at the Lucknow Medical College. The
allegations in the two plaints were almost identical. They were that at about 10 p.m. on
10-4-1955 Dr. C.B. Singh along with Dr. C.S. Patel and Dr. R.V. Singh and Miss Patel,
niece of Dr. C.S. Patel, were going to see the Taj in the car owned and driven by Dr.
C.B. Singh. Dr. C.B. Singh was driving the car with his usual care and at a very
moderate speed of about 15 miles per hour. The car suddenly collided with a traffic
island at the crossing of the Mall and Metcalf Road (now known as General Cariappa
Road). The said traffic island was wrongly and negligently built by the defendant Board
at a very inconvenient spot in or about the middle of the Mall Road. There were no
overhead lights on the traffic island or any other light near it. It was not equipped with
ruby lights so as to make it noticeable for vehicles using the road at night.The defendant
Board was charged with the duties of lighting the streets and other public places,
maintaining streets and roads and removing for purposes of public safety undesirable
obstructions in streets and roads and keeping them safe for vehicular traffic. As a result
of the collision the occupants of the car including the three plaintiffs, suffered injuries
which gave severe physical pain and great mental shock to them. There was a permanent
impairment of certain organs of the body which had affected their earning capacities for
life and resulted in loss of income due to inability to do professional work. Dr. C.B.
Singh and Dr. V.R. Singh claimed Rs. 30,000/- each as damages and compensation as a
result of this gross negligence, misfeasance and malfeasance.
2. The defence of the Cantonment Board, inter alia, was that the occurrence took place on
10-4-1955 which was the Teej day (3rd day after the full moon) and at 10 p.m. it was not
dark and the moon was full and bright that the alleged incident was due to the gross
negligence of the plaintiff himself as he was driving his car rashly and negligently and at
excessive speed that since the accident was due to the negligence of the plaintiff he was
not entitled to claim damages. As regards the traffic island in question, the defence was
115
that it has been bona fide constructed by the defendant Board with the approval and
directions of the police authorities who were responsible for the control of the traffic,
that other necessary precautions to warn public of the existence of such island had been
taken by the Board and that due to limited funds at the disposal of the Cantonment Board
reasonable arrangement had also been made for lighting hours according to the phases of
the moon. It was denied that the plaintiffs suffered any permanent or serious injury. It
was submitted that the amount of damages claimed was imaginary and excessive.
3. The first vital question which arises for decision in the case is whether the Cantonment
Board. Agra was legally liable to the plaintiffs for damages in respect of the collision or
accident with the traffic island. The finding recorded by the trial Judge was that the
Cantonment Board was under no statutory duty to place a traffic sign or erect a traffic
island. Such duty might have been cast under the Motor Vehicles Act on the State
Government which had not been impleaded as a defendant in the suits. At all events, the
Cantonment Board was not legally liable either under the Cantonment Act or under the
Motor Vehicles Act for any collision which took place on account of the impact with the
traffic island. We are unable to endorse the findings of law recorded by the court below.
4. Section 116 of the Cantonment Act, 1924 prescribed the duties of the Board. Clause (a)
refers to the lighting of street and other public places. Clause (e) deals with 'removing, on
the ground of public safety, health or convenience, undesirable obstructions and
projections in streets and other public places'. Clause (h) refers to 'constructing, altering
and maintaining streets, culverts, markets, slaughter-houses, latrines, privies, urinals,
drains, drainage works and sewerage works'. Section 108 of the Cantonments Act is
important
5. It is thus clear that there is a statutory duty on the Board of maintaining streets and hence
the streets as well as all erections existing on them are property which vests in the Board
and belongs to it and is under its direction, management and control. It is also the
statutory duty of the Board under Section 116(e) to remove undesirable obstructions and
projections in streets and other public places. Reference may also be made to Section
117(k) according to which it is included in the discretionary functions of the Board that it
should adopt any measure, other than those specified in Section 116, likely to promote
the safety, health or convenience of the inhabitants of the Cantonment. Therefore, the
Board cannot avoid its responsibility for maintaining and managing streets and removing
undesirable obstructions and projections etc. It is of no consequences as to whether the
Board is under any statutory duty or other obligation to construct traffic islands. Even
though the duty to erect such traffic rotaries may fall on some other authority, once such
erection is made on the streets which vest in the Board and are maintained, controlled
and managed by it, it becomes its duty to prevent it from becoming an undesirable
116
obstruction. Any erection or construction existing on a road may be intrinsically

undesirable in all circumstances or it may become undesirable in the absence of
reasonable precaution and care which are a condition precedent to its utility. It may,
therefore, not be correct to exclude altogether such erections on the streets as a traffic
rotary, nevertheless if it is constructed at an inconvenient site or is not equipped with
requisite measures of safety and becomes dangerous for the public using it, it would
surely become undesirable obstruction and it would be the statutory duty of the Board
under Section 166(e) to remove such obstruction. Any construction existing in the
middle of a highway necessarily implies some obstruction, though its harmful
consequences may be mitigated and it may even be converted into a useful device by
taking recourse to certain preventive measures. If on an appraisal of evidence in the case
we come to the conclusion that the traffic island in question became a source of danger
to the public, there would be no escape from the conclusion that the Board acted
negligently by failing to perform its duty of removing or modifying the same. In that
view of the matter the question as to who was responsible for initially constructing the
rotary loses its importance.
6. In Polkinghorn v. Lambeth Borough Council, (1938) 1 All ER 339 the mere fact that the
defendant council had erected the refuge and bollards was regarded as sufficient to throw
a continuing duty to keep them adequately lighted. They were, therefore, held liable to
the plaintiff in respect of the injury he had sustained
7. Thus, the rule is too well established to permit any doubt that the duty to take care may
flow from common law. Negligence is nothing but the breach of a duty to take care. That
duty arises by reason of a relationship in which one person stands to another person or
authority. Such relationship may arise in a variety of circumstances. The simplest
instance where it arises is when a person exercises his common law right to use the
highway By doing so he places himself in relationship to other users of the highway
which imposes upon the local authority controlling and managing the highway, a duty to
take care. The basic duty of care or precaution is always implied where a danger has
been created by a person or authority, irrespective of the fact as to whether the
Legislature has authorised or not the creation of such danger. The common law duty is to
give warning of the danger which one has placed on the way. Therefore, our conclusion
is that the defendant was both under statutory and common law duty of preventing the
traffic island from becoming a trap or source of danger to the users of the road. If its
failure to exercise reasonable care in this regard is proven, it would be a plainly negligent
act on the part of the Cantonment Board.
8. The crux of the case, there-tore is as to whether in the circumstances the Cantonment
Board failed to observe the necessary care and precaution and could be legitimately
117
blamed for negligence. For that purpose it will be necessary to examine as to what was
the real cause of the accident
9. Dr. C.B. Singh in his statement said that at the time when he was driving there were no
warning signals or indications of the crossing on the road, there were no red fights or
ruby lights so as to make the island noticeable to the vehicles using the road at night. The
allegations to that effect made in the plaint were not denied in the written statement. On
the other hand, the plea taken was that the police authorities did not give any directions
with regard to the fixing of the ruby lights to the rotary in question as they did not
consider it necessary in view of the fact that the painting of the traffic island in white and
black was enough. In our opinion the black and white paint by itself was not sufficient to
give adequate protection to a motorist who was going in a dip position, the paint would
not be visible. The plaintiff further stated in his statement that there was dust on the site
of the island, the road was all dusty and so he did not notice any white or black paint The
plaintiffs statement is corroborated by the admission of Sri M.C. Tyagi that the white
paint on the brickedgings on the Mall Road did not shine due to heavy dust in Agra,
Thus, it appears that even though the traffic island was painted black and white
periodically by the Cantonment Board, it was not visible on account of being overlaid
with dust We find no reason to disbelieve the plaintiffs statement on that account. Hence,
the Cantonment Board did not discharge its duty of care which it owed to the users of the
road.
10. The evidence in the case fully establishes that the lighting arrangements made by the
Cantonment Board, were far from satisfactory. We have already commented on the
practice of the Board lighting the roads according to the phases of the moon. We wish to
emphasise the risk inherent in depending entirely on the moon light. Specially in a case
like the one in hand where the accident occurred not long after moon rise it would be
highly imprudent to switch off the light and depend on the natural light of the moon for
warning the motor drivers of the existence of traffic islands.
11. It is. in conformity with the spirit of the rule that in Municipal area where the traffic is
bound to be comparatively brisk the dazzling light should not be used. In other words, it
would be prudent to use dip lights instead of full lights while driving a motor vehicle in a
Municipal area, irrespective of any notification issued by the District Magistrate. The
object of Rule 197 would be achieved by making use of dip lights in Municipal areas.
Therefore, there was nothing wrong if Dr. C.B. Singh was using only dip lights while
driving the car at the crossing. He stated that he had developed the habit of driving with
dip lights in Municipal areas. In our opinion this was a commendable practice and
whether there was a notification or not Dr. C.B. Singh followed the rule of prudence and
caution by adhering to Rule 197 while driving in the said area. The defendant cannot
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take advantage of the admission by Dr. C.B. Singh that there was no vehicle or traffic at
that time on the Mall or that he did not notice any traffic. The statement merely referred
to the absence of the traffic at that particular moment; it did not negative the existence of
traffic on the Mall Road generally at other time.
12. The other allegation against Dr. C.B. Singh was that he was driving at an excessive
speed and if he had been driving the vehicle at a moderate speed, the car would not have
collided with the traffic island. In other words, it was suggested that the accident was
caused on account of the rash and negligent driving by the aforesaid plaintiff.
13. The moderate speed of the car is also consistent with the little damage done to it by the
accident. If the car had been driven at an excessive speed, much more serious damage
would have been caused to the vehicle; the entire car would have smashed. The evidence
shows that only the right portion of the mudguard and radiator were damaged and the
doors were jammed. It is, therefore, not correct to assert that the plaintiff contributed to
the causing of the accident by any negligence on his part.
14. If all the factors in this case are closely analysed it becomes evident that the cause of the
accident was the absence of precautions by the defendant Board and the speed of the
vehicle in that set up was more or less immaterial. The learned counsel for the defendant
relied on the visibility at the time of the accident, according to the statement made by Dr.
C.B. Singh. and contended that if the plaintiff had acted with reasonable care, he could
have definitely swerved the car and avoided the accident.
15. The perception time is the time required for a driver to realise that the brakes must be
applied. It is the time from the instant the situation is perceived by the driver to the
instant he realises that the vehicle needs to be stopped. The perception time varies
considerably from driver to driver and also depends on several other factors such as
speed of the vehicle, distance of the object and other environmental conditions.
16. The brake reaction time also depends on several factors including the skill of the driver,
the type of the problem and various other environmental factors. Often the total brake
reaction time of the driver is taken together."
17. It is fully established by the evidence in the case that the plaintiff was not negligent, he
was not driving the car at an excessive speed and the defence of contributory negligence
is devoid of substance. The accident was caused on account of the gross negligence of
the defendant and the complete absence of precautions which should have been observed
by it. If there is a legal obligation to do something, omission to do so is negligence
provided the accident can be attributed to it. The public has a right to use the roads for all
119
reasonable purposes and if it is established on the facts of the case that the Board or the
local authority has not sufficiently discharged, its obligation to keep the road reasonably
free from danger, negligence on its part cannot be doubted. There is no principle of law
which enjoins on the users of the road to be extra-astute. A driver, prudent and
reasonable, is not expected to drive on the assumption that he would meet with
improbable obstructions on the highway; otherwise there would be impetus to law
breakers. A person driving the car at night has a right to assume that the road ahead of
him is bereft of obstructions and that dangers around are indicated by proper safeguards
or forewarning in the shape of signals by light etc. This implies that there should be no
unlighted object left on the road at night. The visibility of an obstruction to a person
driving the vehicle must be fully assured by adequate precaution. Authorities responsible
for managing the roads cannot take shelter under plea that the driver should have seen
the obstruction. Such complacency on the part of a local authority or Board does not
possess the sanction of law.
18. The next question relates to the quantum of damages. The most important remedy which
is available to a victim of tort is award of damages. The conventional classification of
damages if made under two heads--general and special. General damages are those
which the law presumes to flow from the negligence complained of. These damages
must be proved, but it is not necessary to allege them in detail in the statement of claim.
Special damages mean some specific item of loss which the plaintiff alleges is the result
of the defendant's negligence in the particular case, although it is not presumed by the
law to flow from the negligence as a matter of course. Full particulars of all special
damage must be given. The orthodox approach was to bring the various heads of
damages under one or the other of these two classes, but the practice of the courts has
demonstrated that these heads often overlap and it is not always possible to maintain the
distinction between them. Another classification which seems to have evolved in actions
for personal injury is based on the distinction between; damages which are capable of
substantially exact pecuniary assessment and those which are hot In this sense, 'special
damages' refers to loss which is capable of substantially exact pecuniary assessment. It
thus includes any loss of earnings suffered by the plaintiff which has accrued by the date
of the trial It also includes such other items as- legal expenses, loss of pension rights,
reduction of prospects of marriage and even the consequent inability to pursue one's
hobby etc. General damages on the other, hand, may be said to refer to non-pecuniary
loss such as pain and suffering, loss of expectation of life, loss of aminity, the injury
itself etc. Winfield in his book 'On Tort" (Eighth Edition) classifies damages under two
broad heads, namely, non-pecuniary and pecuniary loss.
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19. The ambit of non-pecuniary losses covers, 'the injury itself and not merely; 'the
consequences of injury'. It is not necessary that the injury must result in a disability,
permanent or partial.
20. "Pain and suffering undergone by the plaintiff are also a ground of damage. Any
permanent injury especially when it causes a disability from future exertion, and
consequent pecuniary loss, is also a ground of damage. This is one of the cases in which
damages most signally fail to be a real compensation for the loss sustained."
21. We assess the damages on this count at Rs. 3,000/-. Thus, Dr. C.B. Singh is entitled to
general damages of Rs. 5,000/-. We are also satisfied on an appraisal of the evidence in
the case that he suffered a loss of income for two months but since he has failed to
adduce adequate evidence to prove the precise amount of such loss, we are unable to
award special damages to him.
121
ORIENTAL INSURANCE CO. LTD. v. RAM PRASAD VARMA

& ORS
Oriental Insurance Co. Ltd.: Appellant
v.
Ramprasad Varma & Ors: Respondent
CIVIL APPEAL NO. 106 OF 2009
[ARISING OUT OF S.L.P. (CIVIL) NO. 16785 OF 2006]
S.B. SINHA, J.
1. Ram Prasad Varma, respondent No. 1, an Assistant Executive Engineer, was employed
with Oil and Natural Gas Corporation (ONGC) at Rajahmundry. On or about 9.9.1998,
while he was going to the workshop, he was hit by a lorry bearing registration No. AP-
16-W-5839. The lorry ran over his legs. He was admitted in the hospital. Indisputably,
both his legs were amputated. The fact that an accident had taken place owing to rash
and negligent driving on the part of the driver of the said lorry is not in dispute. It is also
not in dispute that, at the relevant time, respondent was aged 55 years and his annual
income was Rs.2,27,471.00.
2. Respondent having suffered permanent disability filed a Claim Petition in terms of

Section 166of the Motor Vehicles Act claiming compensation of a sum of Rs.20 lakhs;
Rs.50,000/- towards extra nourishment; Rs. 50,000/- towards compensation for mental
agony, pain and suffering; Rs. 50,000/- for loss of amenities in life and Rs.2 lakhs for the
expenditure of attendant throughout the life and Rs.16.50 lakhs towards loss of future
earnings.
3. The Motor Accidents Claims Tribunal awarded a sum of Rs.19,63,000/- with interest at
the rate of 12% per annum from the date of filing of the petition till realization.
4. An appeal preferred thereagainst by the Insurance Company before the High Court in
terms of Section 173 of the Act has been dismissed by reason of the impugned judgment.
The High Court, however, considering the prevailing rate of interest reduced the rate of
interest from 12% per annum to 9% per annum.
5. Counsel appearing on behalf of appellant would contend:(i) The learned Tribunal, and
consequently the High Court, committed a serious error in applying multiplier of eight
although respondent would have retired from services on attaining the age of sixty.(ii)
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The Tribunal in determining the amount of compensation should have deducted the
amount of income tax from his gross salary as compensation has been granted on the
basis of the structured formula.(iii) The Tribunal in determining the said amount of
compensation should have deducted one-third from the total amount of his income by
way of miscellaneous expenses.
6. Indisputably, the respondent was an Assistant Executive Engineer. He was an income

tax payee. He had submitted income tax return for the year 1998-99 showing his gross
salary at Rs.2,27,471.40 and the amount of income-tax deducted at source was
Rs.30,748.00.
7. Indisputably, he was to retire within a few years, but in view of the injuries suffered he
had to give up his job. The life expectancy of an Indian citizen is about 62 years. A
person on retirement, in the event if pension scheme is applicable, would be entitled to
pensionary benefits. Had therespondent worked for five years more, the amount of
pension calculated on the basis of last pay drawn would have been more than what might
have become payable in the year 1998.
8. One-third amount is deducted from computation of compensation from the total income
on the premise that some expenses were necessary for one's own survival. Incidentally,
we may notice that in the note appended to the Second Schedule, the amount of
compensation arrived in the case of fatal accident claims is required to be reduced by
one-third in consideration of the expenses which the victim would have incurred towards
maintaining himself had he been alive. A person, although alive, but when he is not in a
position to move and even for every small thing he has to depend upon the services of
another, in our opinion, a direction to deduct 1/3rd of the amount from his total income
need not always be insisted upon.
9. Our attention, however, has been drawn to a decision of this Court in New India
Assurance Co. Ltd. v. Charlie and Anr. [(2005) 10 SCC 720] wherein 1/3rd was directed
to be deducted towards personal expenditure, we do not find that any legal principle was
laid down therein. It also does not appear that the premise on which such deduction is
allowed and what wouldhappen in a case, where such a premise does not exist, did not
fall for consideration.
10. In the instant case, respondent has become totally immobile.
11. Following the aforementioned precedents, we are of the opinion that in the peculiar facts
and circumstances of this case, it is not necessary to interfere either with the application
of multiplier of eight or non-deduction of 1/3rd from his net salary. However, what was
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the net salary of the respondent for the said purpose should have been determined. An
employee when not in employment is not to pay his tax. Income tax payable from the
salary, therefore, was required to be deducted. It was so held in National Insurance
Company Ltd. v. Indira Srivastava and Ors. [(2008) 2 SCC 763], stating:"17. This Court
in Asha (supra) did not address itself the questions raised before us. It does not appear
that any precedent was noticed nor the term 'just compensation' was considered in the
light of the changing societal condition as also the perks which are paid to the employee
which may or may not attract income tax or any other tax. What would be 'just
compensation' must be determined having regard to the facts and circumstances of each
case. The basis for considering the entire pay packet is what the dependents have lost
due to death of the deceased. It is in the nature of compensation for future loss towards
the family income.
12. The amounts, therefore, which were required to be paid to the deceased by his employer
by way of perks, should be included for computation of his monthly income as that
would have been added to his monthly income by way of contribution to the family as
contradistinguished to the ones which were for his benefit. We may, however, hasten to
add that from the said amount of income, the statutory amount of tax payable thereupon
must be deducted."
13. Incidentally, we may notice that in that case also this Court held:"21. If the dictionary
meaning of the word 'income' is taken to its logical conclusion, it should include those
benefits, either in terms of money or otherwise, which are taken into consideration for
the purpose of payment of income-tax or profession tax although some elements thereof
may or may not be taxable or would have been otherwise taxable but for the exemption
conferred thereupon under the statute.
14. The expression 'just' must also be given its logical meaning. Whereas it cannot be a
bonanza or a source of profit but in considering as to what would be just and equitable,
all facts and circumstances must be taken into consideration."
15. The High Court has directed payment of interest at the rate of 9% per annum. We do not
think that any case has been made out for interference with the rate of interest. The
appeal is dismissed subject to the modification that from the gross income of the
respondent, the amount of income tax as was applicable at the relevant time should be
deducted. The Tribunal is directed to redetermine the amount of compensation in the
light of this judgment. However, in the facts and circumstances of this case, there shall
be no order as to costs.
124
HDFC BANK v. BALWINDER SINGH

HDFC Bank Ltd.:Appellants/Opposite parties.
v.
Balwinder Singh: Respondent/Complainant.
III (2009) CPJ 40 (NC)
Shri J.S.Klar, Shri Vinod Kumar Gupta, Member Shri Harcharan Singh Guram, Member.
1. The brief facts of the case of the complainant are that Balwinder Singh, complainant filed
the complaint under the Act against the opposite parties on the averments that the
complainant first availed a loan from ICICI Bank Limited, which was taken over by the
Centurion Bank of Punjab Ltd., (now HDFC Bank Ltd., after taking over the Centurion
Bank to Punjab Ltd.), an amount of Rs.2,15,000/- was sanctioned for taking over the loan
facility. The original Sale Deed bearing Wasika No.1569 and 1570 were also also
received by the OPs along with other documents in the year 2008 from the complainant.
However, the OP did not pay the Top Up loan of Rs.2,85,000/- to the complainant, which
was earlier sanctioned by them. It was further alleged that the complainant was not
satisfied with the service of the OPs and hence, he applied with State Bank of India,
G.T.Road, Khanna Branch, Distt. Ludhiana for taking over the credit facility from HDFC
Bank Ltd. He obtained a letter from the OPs, which showed a total outstanding amount of
Rs.1,92,595.11P on 23.04.2009. It was further pleaded that SBI bank took over the
Housing Loan bearing account No.91848567 from the OPs and a demand draft of
Rs.1,94,000/- was credited to the account of the complainant in the month of April, 2009.
Though all the dues of the OPs were cleared by the new creditor i.e. SBI, but the OPs
failed to return the original sale deed Wasika Number 1570 dated 20.08.1996 to the
complainant. Since April, 2009, the complainant was running from pillar to post to get
his original sale deed back, but he failed to get the original sale deed from the OP. Even
letter dated 07.09.2009 sent by SBI to Branch Manager HDFC Bank Ltd. for handing
over the original Sale Deed evoked no effect. The complainant has suffered mental
agony, physical harassment and he filed the complaint seeking direction to the OPs to
handover the original sale deed and other relevant documents, which were lying in their
legal possession of the OPs and to pay Rs.7.00 Lacs as per the averments in the complaint
and Rs.3.00 Lacs as compensation alongwith interest @ 18% p.a. from the date of
clearance till realization to the complainant.
2. Upon notice, OP No.2 was duly served, but did not appear and was proceeded ex-parte,
vide order dated 04.08.2011, whereas, the notice was sent to OP No.1 through registered
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post on 05.09.2011, the same was not received back. He was proceeded against ex-parte
vide order dated 10.10.2011.
3. The complainant in his ex-parte evidence tendered his affidavit Ex.CA and other
documents Ex.C-1 to Ex.C-6 and closed the evidence. On conclusion of evidence and
arguments, the District Forum Ludhiana, allowed the complaint of complainant by
directing OPs to handover the original sale deed and other relevant documents, which
were in the their possession to the complainant or send them to the concerned branch of
the complainant, where the loan account of the complainant has been transferred. Further
OPs were directed to pay compensation and litigation costs compositively assessed of
Rs.10,000/- to the complainant on account of mental harassment. Dissatisfied with this
order of District Forum Ludhiana, the OPs now appellants have preferred this appeal
against the same.
4. We have heard learned counsel for the appellants as the respondent was proceeded ex-
parte on 03.09.2012. We have also gone though the record of the case.
5. As per the affidavit Ex-CA of Balwinder Singh Consultant, he deposed that first he
availed a loan from ICICI Bank, which was taken over by the Centurion Bank of Punjab
Limited now HDFC Bank Limited after taking over of the Centurion Bank of Punjab
Limited. An amount of Rs.2,15,000/- was sanctioned for taking over the loan facility. The
loan was taken over by the OP from the ICICI Bank Ltd and the original sale deed
bearing Wasika No.1569 & 1570 was also received by the OPs alongwith the other
documents in the year of 2008. The OP however, did not pay the top-up of Rs.2,85,000/-
to the complainant, which were earlier sanctioned by them. It was further deposed that
the complainant was not satisfied with the service of the OPs, then he applied with the
State Bank of India, G.T.Road, Khanna Branch, District Ludhiana for taking over credit
facility from HDFC Bank Ltd. Total outstanding amount of Rs.1,92,595.11p was
outstanding in the name of the complainant and a demand draft of Rs.1,94,000/- was
credited in the account of the complainant in the month of April, 2009. The second letter
issued by the Centurion Bank of Punjab Ltd. now HDFC Bank Ltd dated 25.03.2008 are
also placed on the record vide Ex.C-1 and C-2.
6. In the instant case, the main dispute is that the original Sale Deed of Wasika No.1570
dated 20.08.1996 was not returned to the complainant as per the version of the
complainant and photocopy of the Wasika No.1570 is placed on record vide Ex.C-5. The
OPs were proceeded ex-parte before the District Forum so the OPs could not contest the
allegations made by the complainant in the complaint.
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7. The appellants/OPs filed the appeal in which it was stated that the original Sale Deed
No.569 dated 20.08.1996 was given at the time of taking loan and the same was returned
to the complainant and he signed the same as a token of receipt of the said documents
alongwith the other documents. We have perused the property loan facility agreement, in
which, the second schedule (list of title deed), in which, it was mentioned at serial No.1
the original sale deed dated 20.08.1996. We have perused the letter dated 02.06.2009 in
which, sale deed Wasika No.1569 was released to the complainant. It is clear that the
complainant had deposited only one original Sale Deed Wasika No.1569 dated
20.08.1996. The complainanthad not deposited the Sale Deed of Wasika 1570 at the time
of taking the loan. The complainant has not placed on record any document to show that
the title deed in respect of property of Wasika No.1570 was deposited in the bank.
8. The District Forum has directed the OPs to handover the original sale deed and other
documents, which are in the possession to the complainant or to send them to the
concerned branch of the complainant, where the loan amount of the complainant was
transferred. But, the District Forum has not mentioned what documents have to be
returned to the complainant, whereas as per the OPs, original Sale dated 1569 dated
20.08.1996 and other documents were handed over to the complainant and the
complainant gave the acknowledgement as a token of receipt of the documents vide letter
dated 02.06.2009 and no protest letter has been placed on record by the complainant
regarding Wasika No.1570 dated 20.08.1996 and the District Forum did not appreciate
the evidence on the record vide letter dated 02.06.2009. District Forum relied upon the
letter dated 07.09.2009, vide Ex.C-6 which was sent by State Bank of India to HDFC
Bank Limited. So, the order of the District Forum can not be sustained. No deficiency in
service on the part of the OPs is proved on the record.
9. Sequel to the above discussions, the appeal filed by the appellant is accepted. The order
of the District Forum is hereby set-aside. Consequently, the complaint filed by the
complainant is hereby dismissed without any order as to costs.
10. The appellants had deposited an amount of Rs.5,000/- with this Commission at the time
of filing of the appeal. This amount with interest, if any, be remitted by the registry to the
appellant No.1 by way of a cross cheque/demand draft after the expiry of 45 days.
11. The arguments in this appeal were heard on 10.04.2015 and the order was reserved. Now
the order be communicated to the parties. The appeal could not be decided within the
statutory period due to heavy pendency of court cases.
12. PER S.K. NAIK, MEMBER This revision petition is by the complainant who seeks to
challenge the order dated 30.5.2005 passed by the State Consumer Disputes Redressal
127
Commission U.P., Lucknow, (For short State Commission) vide which the appeal of the
opposite parties (doctors) was accepted and her complaint which had been allowed by the
Mirzapur District Forum, was dismissed.
13. The revision petition arises in the following circumstances:-The 3 year old youngest
daughter of the complainant, on a fall while playing, fractured her left hand on 3.10.1995.
Next day, she took the child for treatment to the Government hospital where she was
attended in the OPD by Dr. A.K.Dubey respondent No.2 who prescribed some medicines
and advised her to come again for hot saline formulation on the hand of the child. An x-
ray was advised. No x-ray, however, could be arranged since x-ray plates were not
available in the hospital. The complainant thereafter visited the hospital with her daughter
on 7.10.1995 when the doctor on duty, Dr.C.P.Gupta respondent No.1, on examination
advised her to obtain the x-ray report as already asked for Dr.Dubey on 3.10.1995. The
complainant, therefore, arranged for the x-ray from outside the hospital and produced the
report before Dr.C.P.Gupta respondent No.1 who, thereafter, applied the plaster on the
fractured hand of the child. Since, there was no improvement and the pain persisted, she
approached the hospital again on 14.10.1995 and the doctor on duty Dr.Dubey
respondent No.2 on examination on the plastered hand, as per the complainant, stated that
the plaster had been wrongly applied. He, therefore, removed the original plaster and re-
plastered the fractured hand for which material was again purchased by the complainant
from outside and supplied to the hospital. The child felt quite comfortable after the
second plaster. This led, the complainant to believe that the respondent/opposite party
Dr.Gupta had initially wrongly applied the plaster which was an act of negligence. Apart
from filing a complaint before the District Magistrate against the medical officers and the
staff of the hospital, the complainant approached the Consumer District Forum for
compensation. Both the doctors resisted the claim. Their explanation before the District
Forum that the need to apply the plaster for the second time arose because the earlier
application as per normal procedure was only temporary and, therefore, tended to be
loose and that the child was properly attended to finally resulting in the fractured limb
becoming all-right, was not accepted by the District Forum. Other grounds such as
treatment having been provided free of charge and, therefore, not falling within the
definition of a consumer also was rejected. The District Forum, therefore, allowed the
complaint and ordered both the doctors to pay a sum of Rs.15,000/- each as compensation
to the complainant.
14. Aggrieved there upon, both the doctors/opposite parties filed appeal before the State
Commission who vide the order, impugned, allowed the appeal and set aside the order
dated 14.9.2001 passed by the District forum resulting in the dismissal of the complaint.
15. Disappointed and aggrieved with the dismissal of his complaint that this revision petition
has been filed by the complainant.The husband of the complainant who has appeared in
128
person has argued the complainants case at length. He was given a patient hearing.
Learned counsel for the respondent too has been heard and the records perused.
16. It has been contended by the husband of the complainant that when his daughter of 3
years old was taken to the hospital on 3.10.1995, the respondent No.2 Dr.A.K.Dubey was
on duty who first stated that there was no fracture and prescribed some medicine but
recommended an x-ray reluctantly on the repeated request of his wife. Since x-ray plates
were not available in the hospital, she got x-ray done from the market only on 7.10.1995
and approached respondent No.1 Dr.C.P.Gupta who was on duty that day. The doctor is
stated to have asked for some suvidha shulk/graft but on being submitted that her
husband was an employee of the health department, the respondent doctor applied the
permanent plaster on the child in a casual manner at 45 degree as against 90 degree.
When the pain did not subside, the child was again brought to the hospital on 14.10.1995,
when the doctor on duty, respondent No.2 Dr.A.K.Dubey examined the child and stated
that the plaster applied by respondent No.1 Dr.C.P.Gupta was improper and had to be re-
done. It was only after the second plaster that the child was relieved of the pain. The
husband of the petitioner, therefore, contends that both the doctors were grossly negligent
in the treatment of his daughter and District Forum has rightly held them to be so and
awarded the compensation which has been erroneously set aside by the State
Commission.
17. With regard to the finding rendered by the State Commission that the complainant did not
fall within the definition of a consumer since he had paid no fee or any charge for the
treatment, the husband of the complainant relying upon the order of the Supreme Court in
the case of Laxman Thamappa Kotgiri Vs.G.M. Central Railway & Ors. contended that
he was entitled to the treatment of his daughter as part of the terms and conditions of the
service and in such a situation as held by the Supreme Court in the Judgment (supra) it
would not amount to free service and would constitute service under the Consumer
Protection Act. He, therefore, submits that : the State Commission has erroneously relied
upon Indian Medical Association Vs. V.P.Santha & Ors., AIR 1996 SC 550 which has no
applicability to the facts of his case. He, therefore, submits that the order passed by the
District Forum be restored.
18. Per contra, learned counsel for the respondent has contended that there has been
absolutely no negligence in the treatment of the child.
19. While she suffered the fall and fractured her hand on 2.10.1995, she was brought to the
hospital only on the next day, when respondent No.2 was on duty but after examination,
he clearly advised for an x-ray as could be seen from the OPD slip. However, the x-ray
was produced only on 7.10.1995 and respondent No.1 applied temporary plaster as is the
129
procedure in such cases. He had given clear instructions to the petitioner regarding
approaching him again in case of any pain but the petitioner/complainant approached the
hospital after a week only on 14.10.1995 when respondent No.2 was on duty. The first
plaster applied was in the nature of temporary plaster which tends to become loose and it
is incorrect to say that any permanent plaster had been fixed at the first instance. The
second plaster was necessary in the normal course of the treatment and, therefore, it is
incorrect to say that any wrong method/treatment was given to the child.
20. As per the admission of the complainant, the pain, thereafter subsided and the hand of the
child fully recovered from the injury/fracture.It has been further contended by the learned
counsel for the respondent that the husband of the complainant is in the habit of
intimidating the various staff of the hospital for unjustified and unwarranted reasons and
the present complaint has been filed on his behest to harass the doctors. He has produced
no expert evidence nor any opinion from any other specialist doctor about the treatment
given to the child. The State Commission has, therefore, rightly dismissed the complaint
and the same needs no interference.
21. We have perused the records and considered the matter carefully. In so far as whether
there has been any negligence in the treatment given to the child is concerned, we find
that the complainant has made wild allegation that respondent No.2 during her first visit
did not attend the child properly or that he reluctantly recommended for the x-ray on her
persistence. This is totally contrary to the facts even as pointed out by the District Forum
wherein it has been stated that on the slip Dr.A.K. Dubey has prescribed two medicines
for the daughter of the complainant Simmi and has advised for the x-ray of the elbow.
The need for applying the plaster for the second time cannot be said to be an act of
negligence since application of POP slab which is also known as temporary cast of the
plaster is the normal procedure adopted at the first instance whenever there is swelling at
the site of the injury. This is not only medically advised but also a normal procedure so as
to cater to the change incase of any increase/decrease in the swelling. It has been denied
that permanent plaster was ever applied in the first instance. The need for applying the
plaster slab on the permanent basis arose because the initial plaster, as stated, was only
temporary in nature. The contention that the plaster was applied at 45 degree as against
90 degree has been denied by the respondents/doctors. It has been contended that
depending on the level of injury/swelling etc., a correct decision to apply the plaster at 90
degree had been taken. The complainant is making a big issue out of a professional
decision just to harass the respondents. According to them, the photographs have been
taken in a manner so as to distort the real picture. The fact that the hand of the child has
been fully treated and fracture has fully joined goes to show that there was no negligence
whatsoever. We find that respondent No.1 Dr.C.P.Gupta is a Senior Orthopaedic
Specialist with considerable experience and his professional decision being questioned by
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the complainant without any expert evidence, should not have been taken as the sole
ground by the District Forum. From the records and the medical literature produced, we
find that there has been no deviation from the practices accepted as proper by a
responsible body of medical men skilled in this discipline.
22. By now it is very well settled that in a case of alleged medical negligence what is
required to be seen is whether the doctor concerned charged with negligence has acted in
accord with the general and approved practice and if it is proved that he has followed
such practice then it is enough to clear him of any charge of negligence. The Supreme
court in the case of Jacob Mathew Vs. State of Punjab and Anr. (2005) 6 SCC 1, held that
it is not necessary for every professional to possess the highest level of expertise in that
branch which he practices.
23. Referring to the Halsburys Laws of England (4th Edn., Vol.30, para 35), it has been held
as under :- The practitioner must bring to his task a reasonable degree of skill and
knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a
very low degree of care and competence, judged in the light of the particular
circumstances of each case, is what the law requires, and a person is not liable in
negligence because someone else of greater skill and knowledge would have prescribed
different treatment or operated in a different way ; nor is he guilty of negligence if he has
acted in accordance with a practice accepted as proper by a responsible body of medical
men skilled in that particular art, even though a body of adverse opinion also existed
among medical men.
24. Deviation from normal practice is not necessarily evidence of negligence. To establish
liability on that basis it must be shown (1) that there is a usual and normal practice ; (2)
that the defendant has not adopted it ; and (3) that the course in fact adopted is one no
professional man of ordinary skill would have taken had he been acting with ordinary
care.
25. In the case in hand the doctors who treated and applied the plaster on the fracture are
fully qualified and experienced whose professional judgment is being questioned not by
way of any expert evidence but on mere allegations. We are, therefore, of the view that
medical negligence is not proved in this case.
26. Once, we hold that medical negligence does not stand proved, the other contention of the
petitioner that the State Commission has wrongly held him not to be a consumer does not
require detailed discussions.
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27. Suffice it to say that the complainant at no stage has produced any evidence to prove that
it was part of the terms and conditions of his service to receive free medical treatment.
No such plea even has been taken before the fora below. Reliance on the judgment of
Laxman Thamappa Kotgiri Vs.G.M. Central Railway & Ors. (supra) appears only to be
an afterthought and in the absence of any such plea before the fora below, it would not
help him.
28. Under the circumstances, there being no merit in the revision petition, the same is
dismissed, however, with no order as to cost.
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NEW INDIA ASSURANCE CO. LTD. v. M/S. ABHILASH JEWELLERY
New India Assurance Co.ltd.: Appellant (s)
v.
M/s Abhilasha Jewellery: Respondent(s)
[ III (2009) CPJ 2 (SC)
Markandey Katju, R.M. Lodha, JJ
1. This appeal has been filed against the order of the National Consumer Disputes Redressal
Commission, New Delhi dated 15.03.2002.
2. The respondent had a business establishment at Vellappad in Trissur District in the State
of Kerala. It took a Jeweller's Block Policy for Rs. 1,15,00,000/-. During the currency of
the policy, the complainant-respondent lodged a claim with the appellant for the loss of
gold ornament weighing 587.870 grams. The claim was repudiated by the appellant on
the ground that the loss of gold was occasioned as it was in the custody of an apprentice,
who was not an employee.
3. The relevant clause in the Insurance Policy stated;"S. 11(a) property insured whilst in the
custody of the insured, his partner or his employees".The question, therefore, is whether
an apprentice is an employee. The National Consumer Disputes Redressal Commission
has held that an apprentice is an employee because Section 2 (6) of the Kerala Shops and
Commercial Establishments Act defines an employee to include anapprentice. The
National Commission has also relied on the definition in the Employees State Insurance
Act and some other enactments.
4. We are of the opinion that the view taken by the Natinal Commssion is not correct. The
present case is covered solely by the contract of insurance. That contract of insurance no
doubt uses the word 'employee', but it does not say that the word 'employee' in the
contract of insurance will have the same meaning as in the Kerala Shops and Commercial
Establishments Act or the Employees State Insurance Act or any other enactment.
5. In various enactments, the word 'employee', has no doubt, been defined to include an
apprentice, but that is only a deeming provision and a legal fiction by which the meaning
of the word 'employee' has been extended.
6. Legal fictions are well-knwon in law. For example, Section 43 (3) of the Income Tax Act
defines 'plant' to include a book. Ordinarily a plant means a factory, and by no stretch of
133
imagination can we call a factory a book. However, the Income Tax Act deems a book to
be a plant for the purpose of depreciation.
7. Many such illustrations of deeming clauses or legal fictions can be given. The definition
of employee in various enactments which include an apprentice within the ambit of the
definition is such a piece of legal fiction. That, however, does not mean that in common
parlance an apprentice is an employee.
8. In the present case, since the word 'employee' has not been defined in the contract of
insurance, we have to give it the meaning which it has in common parlance. In common
parlance, an apprentice is a trainee and not an employee. Even if he is given a stipend,
that does not mean that there is a relationship of master and servant between the firm and
the apprentice. Hence, we cannot agree with the view taken by the National Commission.
In our view , the claim before the National Commission was not maintainable.
Hence we set aside the order of the National Commission. The appeal is allowed. No
orders as to costs.
134
Kishan Gopal & ANR. v. Lala & Ors.

Kishan Gopal & Anr: Appellants
v.
Lala & Ors: Respondents
[Civil Appeal No.7137 of 2013 arising out of SLP (C) No.21139 of 2011]
V.Gopala Gowda, J.
1. Necessary relevant facts are stated hereunder to appreciate the case of the appellants and
also to find out whether the appellants are entitled for the reliefs as prayed in this appeal.
The appellants are the parents of the deceased Tikaram, who died in a road accident on
19.07.1992 on account of rash and negligent driving of the motor vehicle tractor bearing
registration No. RJX 5532 by the driver, as he was traveling in the trolley which was
turned upside down and he fell down from the trolley and sustained grievous injuries and
succumbed to the same.
2. The FIR was registered with the Police Station Uniara, Tonk being case No.121/92.
After investigation in the case, charge-sheet No.81/92 (Ex.2) was filed on 30.07.1992
against the first respondent, the driver of the offending vehicle and its owner the
respondent No.2. A site map (Ex.3) was drawn up, post-mortem of the deceased was
conducted and post-mortem Report was marked as Ex.7.
3. The claimants, being the appellants- parents, who have lost their son at the age of 10
years in the motor vehicle accident and the vehicle was insured with respondent No.3 -
the Insurance Company, preferred claim petition under Section 140 read with Section
166 of the Motor Vehicles Act, 1988 (in short the 'M.V. Act') claiming compensation for
Rs.15,63,000/- under the headings of loss of dependency, mental agony, loss of love and
affection, expenses incurred for carrying dead body and performing last rites of the
deceased son as per Hindu customs. Further, they have, inter alia, pleaded that the son
would have earned a sum of Rs.2000/- p.m. after the age of 18 years and he would have
lived upto 70 years, therefore, multiplied by 52 for claiming the financial assistance that
he could have rendered to the parents, the same is worked out to Rs.12,48,000/-.
4. Notices were served upon respondent Nos.1 and 2, the driver and the owner of the
offending vehicle. Despite service of notice upon them they did not choose to appear and
contest the proceedings and therefore, they were placed ex-parte in the claim
proceedings before the Tribunal.
135
5. The Insurance Company appeared and filed its statement of counter denying the various
averments of the claim petition and pleaded that the deceased son of the appellants was
not studying and further disputed that there was possibility of earning Rs.2000/- p.m. by
the deceased. It was further pleaded that in the FIR, it is mentioned that deceased boy
was going in the tractor-trolley, fell down from it on account of rash and negligent
driving of the offending vehicle by the first respondent, the deceased son sustained
grievous injuries and succumbed to the same.
6. It is further stated that the driver of the offending vehicle had no right to carry passenger
in a tractor as it is exclusively required to be used for the agricultural operation and
therefore, there is contravention of the terms and conditions of the insurance policy
issued in favour of the owner of the offending vehicle. It is further stated by the
Insurance Company that the trolley was not registered and the driver of the offending
vehicle did not have the valid licence and hence, it is not liable to pay compensation as
claimed by the appellants. On the basis of the pleadings, five issues were framed by the
Tribunal for its determination.
7. On behalf of the appellants, Kishan Gopal the father of the deceased was examined as
AW-1. He has deposed in his evidence narrating the manner in which the accident took
place and marked the documents produced by him viz. FIR, charge-sheet, Site Map,
Notice under Section 174, Insurance cover note, Mechanical Inspection, post-mortem
Report, Notice under Section 133 and the Registration Certificate as Exhs. 1 to 9
respectively. AW-2, who was cultivating in the adjoining field situated near the place of
accident was examined on behalf of the appellants and he has spoken about the incident
and deposed that the deceased boy was going in the tractor-trolley and the first
respondent- driver was driving the tractor and the trolley turned down and he fell down
as the driver drove the tractor with high speed negligently and he had sustained grievous
injuries and succumbed to the same.
8. The Tribunal, on appreciation of pleadings and legal evidence on record, has answered
the issue No.1, after adverting to the averments of the claim petition and evidence on
record, and held that the appellants have not succeeded in proving that Tikaram died
because of falling from the tractor-trolley which was driven rashly and negligently by the
driver. Issue No.2 was also answered holding that the appellants are not entitled for the
compensation as claimed by them for the reason that the finding recorded on the issue
No.1 is in the negative.
9. Aggrieved by the judgment and award of the Tribunal, the appellants filed an appeal
before the High Court questioning the correctness of the findings recorded on the
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contentious issue Nos.1 & 2 contending that rejection of the claim petition by it is not
only erroneous in fact but also suffers from error in law. Therefore, they have
approached the High Court by filing an appeal for grant of just and reasonable
compensation to them setting aside the judgment and award of the Tribunal.
10. The learned Judge of the High Court has not exercised his appellate jurisdiction by
reappreciating the pleadings and evidence on record and he had mechanically concurred
with the findings and reasons recorded by the Tribunal on the contentious issues in its
judgment and dismissed the appeal by passing a cryptic order without adverting to the
pleadings, legal evidence and legal contentions urged on behalf of the parties.
11. The tractor with trolley can be used only for agricultural purposes but not for carrying
passengers which would be in contravention of the provisions of the M.V. Act and terms
and conditions of the policy issued covering the Motor Vehicle Tracter. Therefore, it is
stated by the Insurance Company that by allowing the deceased boy to travel in the
trolley of the tractor, the driver has violated the terms & conditions of the insurance
policy and law and it has also placed reliance upon the decision of this Court in National
Insurance Co.Ltd. v. Baljit Kaur[1], in support of its defence wherein this Court has held
that the passengers, who travel in the goods carriage and die in the accident are not
entitled to get any compensation from the Insurance Company under the policy.
12. That deceased Tikaram was not studying in School and there is no possibility of earning
Rs.2000/- per month.
13. That as passenger cannot travel in tractor and death was caused sitting in trolly which is
not allowed. The petitioner cannot claim any compensation for the negligence of
Tikaram sitting in trolly. Tractor can only be used for agricultural purposes.
14. That driver had no valid licence.
15. That learned Tribunal in its award rightly gave finding that there is contradiction in
statement of Kishan Gopal AW1 and Babu AW2 as Kishan Gopal stated that his son
died as his son was hit by Lala driving the tractor fast and negligently. Whereas Babu
stated that Lala was driving tractor rashly and negligently because of which the tractor
got turned down and in the accident Tikaram died. As per the contradictions the case was
not proved by the petitioner before the Tribunal. Further, there are contradictions in the
statement of witnesses and FIR.
16. That the Insurance Company did not appear to prove the fact that Lala was not having
valid licence to drive tractor.
137
17. That Insurance Company has to prove that driver has not got valid licence. The finding
to this effect given by learned Tribunal is right.
18. That petitioner is not entitled for any compensation.
19. That the above special leave petition may kindly be dismissed."
20. On behalf of respondent Nos.1 and 3 counter affidavits have been filed but none
appeared at the time of hearing. After hearing the learned counsel for the appellants, this
appeal was reserved for judgment. On the basis of the factual and rival legal contentions
urged on behalf of the appellants, the following points are framed for consideration of
this Court:-
21. I. Whether the findings of fact recorded on issue Nos.1 & 2 framed by the Tribunal,
which finding is affirmed by the High Court in the impugned judgment is vitiated on
account of erroneous reasoning? II. Whether the appellants are entitled for
compensation, if so to what amount? III. What award?
22. The first point is required to be answered in favour of the appellants by assigning the
following reasons:- The deceased son of the appellants died in an accident, while he was
traveling in a trolley of the tractor bearing No.RJX-5532 on 19.07.1992, the trolley
turned down on account of rash and negligent driving of the tractor by the driver-
respondent No.1. In this regard, the FIR was registered being FIR No.121/92 with the
Uniara Police Station, Tonk. On the basis of the said FIR, the investigation was made by
the Investigation Officer and charge-sheet No.81/92 was filed on 30.07.1992 against the
driver and the owner of the offending vehicle for the offences punishable under Sections
279 and 304-A IPC read with certain provisions of the M.V.Act.
23. In view of the aforesaid facts, the Tribunal should have considered both oral and
documentary evidence referred to supra and appreciated the same in the proper
perspective and recorded the finding on the contentious issue No. 1 & 2 in the
affirmative. But it has recorded the finding in the negative on the above issues by
adverting to certain statements of evidence of AW-1 and referring to certain alleged
discrepancies in the FIR without appreciating entire evidence of AW-1 and AW-2 on
record properly and also not assigned valid reasons in not accepting their testimony.
24. The Tribunal should have taken into consideration the pleadings of the parties and legal
evidence on record in its entirety and held that the accident took place on 19.07.1992,
due to which Tikaram sustained grievous injuries and succumbed to the same and the
138
case was registered by the Uniara Police Station under Sections 279 and 304-A, IPC read
with Sections 133 and 181 of the M.V. Act against the first and second respondents. The
registration of FIR and filing of the charge-sheet against respondent Nos.1 & 2 are not in
dispute, therefore, the Tribunal should have no option but to accept the entire evidence
on record and recorded the finding on the contentious issue Nos.1 and 2 in favour of the
appellants.
25. Further, it should have held that the deceased son died in the tractor accident, driven by
first respondent rashly and negligently, but it has answered the above contentious issue
Nos. 1 & 2 in the negative and therefore, we have to set aside the said erroneous findings
as the Tribunal has failed to appreciate the entire evidence both oral and documentary
properly to answer the issue Nos.1 & 2 in the affirmative. From the perusal of the
evidence elicited in the cross-examination of AW-1 - the father and AW-2 who reached
the spot immediately after the accident, he had seen the accident and narrated that the
deceased boy had sustained grievous injuries in the accident and succumbed to the same.
26. The Tribunal has ignored certain relevant facts and evidence on record while considering
the case of the appellants. The High Court though it has got power to re-appreciate the
pleadings and evidence on record, has declined to do so and mechanically endorsed the
findings of fact on contentious issue Nos.1 & 2 after referring to certain stray sentences
from the evidence of AW-1 and the FIR and it has erroneously held that there is a
contradiction between the FIR, the claim petition and the evidence of the appellants.
27. It has concurred with the finding of fact recorded on the contentious issues and accepted
dismissal of the petition. The concurrent findings of fact are erroneous and invalid and
therefore, the same call for our interference in this appeal. The approach of the High
Court to the claim of the appellants is very casual as it did not advert to the oral and
documentary evidence placed on record on behalf of the appellants, particularly, in the
absence of rebuttal evidence adduced by the Insurance Company, hence the same is
liable to set aside and accordingly we set aside the same.
28. Point Nos.2 and 3 are answered together in favour of the appellants for the following
reasons:- The Tribunal having answered the contentious issue No.1, against the
appellants in its judgment the same is concurred with by the High Court by assigning
erroneous reasons and it has affirmed dismissal of the claim petition of the appellants
holding that the accident did not take place on account of the rash and negligent driving
of the offending vehicle by the first respondent and therefore the contentious issue Nos.1
and 2 are answered in the negative against the appellants and it has not awarded
compensation in favour of the appellants.
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29. Since we have set aside the findings and reasons recorded by both the Tribunal and the
High Court on the contentious issue Nos.1 & 2 by recording our reasons in the preceding
paragraphs of this judgment and we have answered the point in favour of the appellants
and also examined the claim of the appellants to award just and reasonable compensation
in favour of the appellants as they have lost their affectionate 10 year old son. For this
purpose, it would be necessary for us to refer to Second Schedule under Section 163-A
of the M.V. Act, at clause No.6 which refers to notional income for compensation to
those persons who had no income prior to accident.
30. Thus, a total sum of Rs.1,57,000/- was awarded in that case. After noting the submission
made on behalf of TISCO in the said case that the compensation determined for the
children of all age groups could be double as in its view the determination made was
grossly inadequate and the observation was further made that loss of children is
irrecoupable and no amount of money could compensate the parents. Having regard to
the environment from which the children referred to in that case were brought up, their
parents being reasonably well-placed officials of TISCO, it was directed that the
compensation amount for the children between the age group of 5 to 10 years should be
three times.
31. In other words, it should be Rs.1.5 lakhs to which under the conventional heads a sum of
Rs.50,000/- should be added and thus total amount in each case would be Rs.2 lakhs.
Further, in the case referred to supra it has observed that in so far as the children of age
group between 10 to 15 years are concerned, they are all students of Class VI to Class X
and are children of employees of TISCO and one of the children was employed in the
Company in the said case having regard to the fact the contribution of the deceased child
was taken Rs.12,000/- p.a. appears to be on the lower side and held that the contribution
of such children should be Rs.24,000/- p.a. In our considered view, the aforesaid legal
principle laid down in Lata Wadhwa's case with all fours is applicable to the facts and
circumstances of the case in hand having regard to the fact that the deceased was 10
years' old, who was assisting the appellants in their agricultural occupation which is an
undisputed fact.
32. The said amount will carry interest at the rate of 9% p.a. by applying the law laid down
in the case of Municipal Council of Delhi v. Association of Victims of Uphaar
Tragedy[5], for the reason that the Insurance Company has been contesting the claim of
the appellants from 1992-2013 without settling their legitimate claim for nearly about 21
years, if the Insurance Company had awarded and paid just and reasonable compensation
to the appellants the same could have been either invested or kept in the fixed deposit,
then the amount could have earned five times more than what is awarded today in this
140
appeal. Therefore, awarding 9% interest on the compensation awarded in favour of the

appellants is legally justified.
33. Accordingly, we pass the following order: I. The appeal is allowed and the impugned
judgments and awards of both the Tribunal and High Court are set aside. II. The awarded
amount of Rs.5,00,000/- with interest at the rate of 9% per annum should be paid to the
appellants from the date of filing of the application till the date of payment. III. We
direct the Insurance Company to issue the demand draft drawn on any Nationalized Bank
by apportioning the compensation amount equally with proportionate interest and send it
to the appellants within six weeks from the date of receipt of a copy of this judgment.
141
Anathula Sudhakar v. P. Buchi Reddy (Dead) By Lrs & Ors

Anathula Sudhaka: Petitioner
v.
P. Buchi Reddy (Dead) By LRs & Ors: Respondent
Appeal (civil) 6191 of 2001
R.V. RAVEENDRAN, J.
1. Plaintiffs 1 and 2 claimed to be the respective owners in possession of the said two sites
having purchased them under two registered sale deeds dated 9.12.1968 (Exs.A1 and
A2) from Rukminibai. The plaintiffs further claimed that the said two sites were mutated
in their names in the municipal records. They alleged that on 3.5.1978, when they were
digging trenches in order to commence construction, the defendant interfered with the
said work. The plaintiffs, therefore, filed suit OS No.279 of 1978 in the file of Principal
District Munsiff, Warangal, for a permanent injunction to restrain the defendant from
interfering with their possession.
2. Defendant resisted the suit. He claimed that suit property measuring 300 sq. yards in
Premises No. 13/776 was purchased by him from K. V. Damodar Rao (brother of
plaintiffs' vendor Rukminibai) under registered sale deed dated 7.11.1977 (Ex.B1); that
he was put in possession of the suit property by Damodar Rao; that the suit property had
been transferred to his name in the municipal records; that he applied for and obtained
sanction of a plan for construction of a building thereon; and that he had also obtained a
loan for such construction from the Central Government by mortgaging the said
property. According to him, when he commenced construction in the suit property, the
plaintiffs tried to interfere with his possession and filed a false suit claiming to be in
possession.
3. There was no dispute that the site purchased by the defendant from Damodar Rao under
deed dated 7.11.1977 is the same as the two sites purchased by plaintiffs from
Rukminibai under sale deeds dated 9.1.1968. There is also no dispute that the suit
property is a vacant plot and it was originally portion of the backyard of the property
bearing nos. 13/775 and 13/776, belonging to Damodar Rao, and that he was shown as
registered owner of the said properties No.13/775 and 13/776 in the municipal records.
4. The trial court decreed the suit by judgment dated 31.12.1985. Relying on the two sale
deeds in favour of plaintiffs, the tax paid receipts and the oral evidence, it held that
plaintiffs were in possession of the suit property from the date of purchase and the
defendant had interfered with their possession. The defendant filed an appeal challenging
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the judgment and decree of the trial court before the Addl. District Judge, Warangal. The
first appellate court held that the defendant was in possession of the suit property and the
plaintiffs had not made out, even prima facie, either title or possession over the suit
property. It was of the view that in the circumstances a mere suit for injunction was not
maintainable, and at least when the defendant filed his written statement denying the title
of plaintiffs and setting up a clear and specific case of title in himself, the plaintiffs ought
to have amended the plaint to convert the suit into one for declaration and injunction.
Consequently it allowed the appeal by judgment and decree dated 9.12.1991 and
dismissed the suit. Being aggrieved, the plaintiffs filed SA No.29 of 1992.
5. The High Court by its judgment dated 18.1.1999 allowed the second appeal and restored
the judgment and decree of the trial court. For this purpose, the High Court examined the
evidence in detail and recorded the following findings: (i) There was an oral gift of the
backyard portion (No.13/776) by way of 'pasupu kumkumam' by Damodar Rao in favour
of his sister Rukminibai in the year 1961. As a gift of an immovable property in favour
of a daughter or sister by way of 'Pasupu Kumkuman' could be oral, the absence of any
registered document did not invalidate the gift. (ii) Damodar Rao negotiated with
plaintiffs, for sale of the two sites, on behalf of his sister Rukminibai, representing that
his sister was the owner thereof and attested the sale deeds executed by his sister
Rukminibai in favour of plaintiffs as a witness and identified her as the executant of the
sale deeds before the Sub-Registrar. Those acts of Damodar Rao supported the claim of
Rukminibai that there was a oral gift. Alternatively, even if there was no gift in favour of
Rukminibai, and Damodar Rao was the owner, the aforesaid acts of Damodar Rao
showed that with his implied consent, Rukminibai represented to be the ostensible owner
of the suit property and transferred the same to plaintiffs for consideration. This attracted
the provision of section 41of Transfer of Property Act, 1882 and therefore the transfers
in favour of plaintiffs was not voidable at the instance of Damodar Rao or his successor
in interest on the ground that Rukminibai was not the owner of the suit property.
6. The High Court consequently held that plaintiffs had established their title in regard to
the two vacant sites purchased by them and drew an inference that possession was
presumed to be with them by applying the principle of possession follows title. The High
Court also held that it was not necessary to plaintiffs to sue for declaration of title, as the
question of title could be examined incidental to the question of possession.
7. The said judgment is challenged by the defendant, in this appeal by special leave, on the
following grounds :
(a) The suit for permanent injunction without seeking declaration of title was not
maintainable on the facts of the case. At all events, the High Court ought not to have
143
recorded a finding of fact on a seriously disputed and complicated issue of title, in a suit
for a mere injunction.
(b) The first appellate court held that plaintiffs had neither established their title nor their
possession and their remedy was to file a suit for declaration and consequential relief.
The High Court, in a second appeal, ought not to have reversed the said decision of the
first appellate court, by the process of examining and recording a finding on title, even
though there was no issue regarding title.
(c) An oral gift by a brother to a sister was not permissible. At all events, such an oral gift
even if permissible can be made only at the time of a partition or at the time of marriage
of the sister, with a view to making a provision for her. The High Court erred in holding
that the there was a valid oral gift by Damodar Rao in favour of Rukminibai.
(d) There was no plea in the plaint about the ostensible ownership of Rukminibai or about
any acts of Damodar Rao which demonstrated the consent of Damodar Rao to such
ostensible ownership. Nor was there any plea about due and diligent enquiries by the
plaintiffs regarding title before purchase. Therefore the High Court erred in holding that
the sales in favour of plaintiffs were protected by section 41 of the Transfer of Property
Act, 1882.
(e) In the absence of pleadings and an issue regarding title, the defendant had no
opportunity to effectively lead evidence on the question of title.
(f) The High Court erred in equating plaintiffs' failure to produce title deeds of their
vendor to defendant's failure to produce the title deeds of his vendor. The High Court
overlooked the fact that there was no dispute that defendant's vendor Damodar Rao was
the earlier owner of the suit property and it was for the plaintiffs who had set up a case
that their vendor Rukminibai derived title from Damodar Rao under an oral gift, to prove
the said claim.
8. On the contentions urged, the following questions arise for our consideration in this
appeal:
(i) What is the scope of a suit for prohibitory injunction relating to immovable property?
(ii) Whether on the facts, plaintiffs ought to have filed a suit for declaration of title and
injunction ?
(iii) Whether the High Court, in a second appeal under section 100 CPC, examine the
factual question of title which was not the subject matter of any issue and based on a
finding thereon, reverse the decision of the first appellate court?
(iv) What is the appropriate decision?
144
8. The general principles as to when a mere suit for permanent injunction will lie, and when
it is necessary to file a suit for declaration and/or possession with injunction as a
consequential relief, are well settled. We may refer to them briefly.
9. Where a plaintiff is in lawful or peaceful possession of a property and such possession is

interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A
person has a right to protect his possession against any person who does not prove a
better title by seeking a prohibitory injunction. But a person in wrongful possession is
not entitled to an injunction against the rightful owner.
10. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is
to file a suit for possession and seek in addition, if necessary, an injunction. A person out
of possession cannot seek the relief of injunction simpliciter, without claiming the relief
of possession.
11. Where the plaintiff is in possession, but his title to the property is in dispute, or under a
cloud, or where the defendant asserts title thereto and there is also a threat of
dispossession from defendant, the plaintiff will have to sue for declaration of title and the
consequential relief of injunction. Where the title of plaintiff is under a cloud or in
dispute and he is not in possession or not able to establish possession, necessarily the
plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial
of title by the defendant or challenge to plaintiff's title raises a cloud on the title of
plaintiff to the property. A cloud is said to raise over a person's title, when some apparent
defect in his title to a property, or when some prima facie right of a third party over it, is
made out or shown. An action for declaration is the remedy to remove the cloud on the
title to the property. On the other hand, where the plaintiff has clear title supported by
documents, if a trespasser without any claim to title or an interloper without any apparent
title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title
of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a
suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only
a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in
such a suit, the defendant discloses in his defence the details of the right or title claimed
by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need
for the plaintiff, to amend the plaint and convert the suit into one for declaration.
Alternatively, he may withdraw the suit for bare injunction, with permission of the court
to file a comprehensive suit for declaration and injunction. He may file the suit for
145
declaration with consequential relief, even after the suit for injunction is dismissed,
where the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant from interfering with
plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he
was in lawful possession of the suit property and defendant tried to interfere or disturb
such lawful possession. Where the property is a building or building with appurtenant
land, there may not be much difficulty in establishing possession. The plaintiff may
prove physical or lawful possession, either of himself or by him through his family
members or agents or lessees/licensees. Even in respect of a land without structures, as
for example an agricultural land, possession may be established with reference to the
actual use and cultivation. The question of title is not in issue in such a suit, though it
may arise incidentally or collaterally.
14. To summarize, the position in regard to suits for prohibitory injunction relating to
immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he
does not have possession, a suit for declaration and possession, with or without a
consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or
under a cloud, but he is out of possession, he has to sue for possession with a
consequential injunction. Where there is merely an interference with plaintiff's lawful
possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the
issue of title will not be directly and substantially in issue. The prayer for injunction will
be decided with reference to the finding on possession. But in cases where de jure
possession has to be established on the basis of title to the property, as in the case of
vacant sites, the issue of title may directly and substantially arise for consideration, as
without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are
necessary pleadings and appropriate issue regarding title [either specific, or implied as
noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in
a plaint and where there is no issue relating to title, the court will not investigate or
examine or render a finding on a question of title, in a suit for injunction. Even where
there are necessary pleadings and issue, if the matter involves complicated questions of
fact and law relating to title, the court will relegate the parties to the remedy by way of
comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere
injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to
title on which parties lead evidence, if the matter involved is simple and straight-forward,
146
the court may decide upon the issue regarding title, even in a suit for injunction. But such
cases, are the exception to the normal rule that question of title will not be decided in
suits for injunction. But persons having clear title and possession suing for injunction,
should not be driven to the costlier and more cumbersome remedy of a suit for
declaration, merely because some meddler vexatiously or wrongfully makes a claim or
tries to encroach upon his property. The court should use its discretion carefully to
identify cases where it will enquire into title and cases where it will refer to plaintiff to a
more comprehensive declaratory suit, depending upon the facts of the case.
15. Rukminibai did not have any title deed to the suit property. The case of plaintiffs during
arguments was that the gift made in the year 1961, being by way of 'Pasupu Kumkumam'
in favour of a sister by a brother, could be oral and did not require a registered
instrument. But the property allegedly gifted to Rukminibai was not mutated in the name
of Rukminibai in the municipal records, but continued in the name of Damodar Rao even
after 1961. Damodar Rao was a resident of Warangal and staying in the house adjoining
the suit property. Rukminibai was a resident of Hyderabad. Therefore, as on the date of
sales in favour of the plaintiffs 9.12.1968, Rukminibai had neither any title deed nor
actual possession. Nor was the property mutated in her name in the municipal records.
The tax paid receipts produced by the plaintiffs related to a period subsequent to the
execution of the sale deeds by Rukminibai in their favour and subsequent to the sale by
Damodar Rao in favour of defendant. On the other hand, the suit property was sold in
favour of the defendant by Damodar Rao who was shown as registered owner in the
municipal records and who even according to the plaintiffs was the original owner of the
property.
16. The suit sites were vacant plots. Both sides admitted that Damodar Rao was the original
owner and that entire property stood in his name. The defendant claims title through
Damodar Rao. The plaintiffs claim title through Rukminibai who neither has any deed of
title nor any document in support of title or possession. Admittedly, there was no
mutation in her name. This means that plaintiffs claim title through someone who
claimed to be owner in pursuance of an oral gift in the year 1961 without the property
being mutated in her name, whereas the defendant claims title from the person who was
admittedly the original owner who was registered as owner in the revenue records.
Necessarily, therefore, prima facie it has to be held that defendant had made out
possession following title.
17. The High Court formulated the following as substantial questions of law:"(i) Whether
the plaintiffs' suit for permanent injunction without seeking declaration of title is
maintainable under law? (ii) Whether the acts and deeds of Damodar Rao (DW-2) made
the plaintiffs to believe that Rukminibai is the ostensible owner of the suit property and
147
thus made them to purchase the suit property for valid consideration and, therefore, the
provisions under Section 41 of the Transfer of Property Act are attracted and as such
DW-2 could not pass on a better title to the defendant under Ex.B-1?
(iii) Whether the alleged oral gift of the suit property in favour of Rukminibai by DW2
towards pasupukumkum is legal, valid and binding on DW2 though effected in
contravention of the provisions under Section 123 of the Transfer of Property Act?"
18. Having regard to the pleadings and issues, only the first question formulated by the High
Court can be said to arise for its consideration in the second appeal. The second and third
questions did not arise at all, as we will presently demonstrate.
19. The second question of law formulated by the High Court is a mixed question of fact and
law, that is whether the factual ingredients necessary to claim the benefit of section 41 of
the Transfer of Property Act were made out by plaintiffs. To attract the benefit of section
41 of TP Act, the plaintiffs had to specifically plead the averments necessary to make out
a case under section 41 of the T.P. Act and claim the benefit or protection under that
section. The averments to be pleaded were : (a) that Rukminibai was the ostensible
owner of the property with the express or implied consent of Damodar Rao; (b) that the
plaintiffs after taking reasonable care to ascertain that the transferor or Rukminibai had
the power to make the transfer, had acted in good faith in purchasing the sites for valid
consideration; and (c) that therefore, the transfer in favour of plaintiffs by Rukminibai
was not voidable at the instance of Damodar Rao or any one claiming through him.
20. These pleas were not made in the plaint. When these were not pleaded, the question of
defendant denying or traversing them did not arise. In the absence of any pleadings and
issue, it is ununderstandable how a question of law relating to section 41 of TP Act could
be formulated by the High Court.
21. The third question of law formulated by the High Court, is also a mixed question of fact
and law firstly whether there was an oral gift and secondly whether the alleged oral gift
was valid. Here again, there was no averment in the plaint in respect of any gift, oral or
otherwise, by Damodar Rao in favour of Rukminibai or about its validity. Consequently
there was no opportunity to the defendant to deny the oral gift in his written statement.
There was no issue on this aspect also. Therefore, this question, which could not have
been considered in the suit, could not also have been considered in the second appeal.
22. The High Court, in the absence of pleadings and issues, formulated in a second appeal
arising from a suit for bare injunction, questions of law unrelated to the pleadings and
issues, presumably because some evidence was led and some arguments were advanced
148
on those aspects. The only averment in the plaint that plaintiffs were the owners of the
suit property having purchased the same under sale deeds dated 9.12.1968, did not
enable the court, much less a High Court in second appeal, to hold a roving enquiry into
an oral gift and its validity or validation of ostensible title under section 41 of TP Act.
No amount of evidence or arguments can be looked into or considered in the absence of
pleadings and issues, is a proposition that is too well settled.
23. The High Court while reversing the decision of the first appellate court, examined
various aspects relating to title and recorded findings relating to title. It held that gifting
a property to a daughter or sister by way of 'Pasupu Kumkumam", could be done orally
and did not require a registered instrument. Even though there was no independence
evidence of oral gift except the assertion to Rukminibai (which was denied by Damodar
Rao), the High Court, held that there was an oral gift in her favour. It also accepted the
evidence of PW3 and PW5 and plaintiffs, that Damodar Rao negotiated for the sale of
the plots representing that they belonged to his sister Rukminibai and that he attested the
sale deeds as a witness and identified the Rukminibai as the executant before the Sub-
Registrar and therefore, section 41 of TP Act came to the aid of plaintiffs and Damodar
Rao was estopped from denying the title of his sister. The High Court in a second appeal
arising from a suit for an injunction, could not have recorded such findings, in the
absence of pleadings and issue regarding title.
24. We are therefore of the view that the High Court exceeded its jurisdiction under section
100 CPC, firstly in re-examining questions of fact, secondly by going into the questions
which were not pleaded and which were not the subject matter of any issue, thirdly by
formulating questions of law which did not arise in the second appeal, and lastly, by
interfering with the well reasoned judgment of the first appellate court which held that
the plaintiffs ought to have filed a suit for declaration.
25. We are conscious of the fact that the suit was filed in the year 1978 and driving the
plaintiffs to a fresh round of litigation after three decades would cause hardship to them.
But the scope of civil cases is circumscribed by the limitations placed by the rules of
pleadings, nature of relief claimed and the court fee paid. The predicament of plaintiffs,
was brought upon themselves, by failing to convert the suit to one for declaration even
when the written statement was filed, and by not seeking amendment of issues to include
an issue on the question of title. In the absence of a prayer of declaration of title and an
issue regarding title, let alone the pleadings required for a declaration of title, the parties
cannot be said to have an opportunity to have a full-fledged adjudication regarding title.
149
26. We, therefore, allow this appeal, set aside the judgment of the High Court and dismiss
the suit. Nothing stated herein or by the courts below shall be construed as expression of
any opinion regarding title, in any future suit for declaration and consequential reliefs
that may be filed by the Appellants, in accordance with law. Parties to bear their
respective costs.
150
Model Questions
1. How is Law of Torts different from Law of Contract & Law of Crimes?
2. Define Negligence. Explain the essentials of Negligence with the help of relevant
case law.
3. (a) H wrote a number of letters to his wife W containing defamatory matter
about her father. W passed on those letters to her father F. Therefore F launched a
prosecution against H. Is the suit maintainable? Decide with the help of relevant case
law.
(b) Differentiate between Libel and Slander.
4. Explain Trespass to land. What are the remedies available against Trespass to
land?
5. What is Strict Liability? Are there any exceptions to this concept?
6. Discuss the Rights of a Consumer under the Consumer Protection Act, 1986.
7. Examine the various remedies for torts.
8. Define defamation. Distinguish between libel and slander.
9. Write short notes on :-
a) Assault and Battery
b) injuria sine damnum
10. Write short notes on :-
a) Tort as a civil wrong
b) Nuisance
151

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K.R.

Mangalam University Law of Torts & Consumer Protection Act, 1986

MANJU BHATIA AND ANR. v. NEW DELHI MUNICIPAL

K. Ramaswamy, S. Saghirahmad, G.B. Pattanaik, JJ.

2. Before we go into the controversy involved, it would be appropriate and

The appeal is accordingly disposed of.

BHIM SINGH, MLA v. STATE OF JAMMU AND KASHMIR

O. Chinnappa Reddy, J. And V. Khalid,J

TOWN AREA COMMITTEE AND ORS. v. PRABHU DAYAL

Prabhu Dayal and Another : Respondent

AIR 1975 All 132

MAYOR OF BRADFORD CORPORATION v. PICKLES

LLOYD v. GRACE, SMITH & CO.

Grace , Smith & Co.: Respondent

MERSEY DOCKS AND HARBOUR BOARD v COGGINS AND

Mersey docks and Harbour Board: Appellant

Coggins and Griffiths (Liverpool) Ltd.: Respondent

[1946] 2 All ER 345

i. The Daimler Co. were in possession of the car as bailees;

THE SECRETARY OF STATE FOR INDIA v. HARI BHANJI

(1882) ILR 5 Mad 273

7. It is an acknowledged attribute of sovereignty and has been described as a rule of

KASTURI LAL RALIA RAM JAIN v. STATE OF U.P.

State of U.P.: Respondent

AIR 1969 SC 1039

(a) As a sovereign power and

(b) As a trading company.

Secretary of State arose in respect of inquiries sustained by the plaintiff in a carriage

RUDUL SAH v. STATE OF BIHAR AND ANR.

Rudul Sah: Appellant

State of Bihar and Another: Respondent

Lord Atkin, Thankerton and MacMillan, JJ

4. Before examining the merits two comments are desirable:

5. The outcomes of Donoghue v. Stevenson established several legal principles and

ISHWAR DEVI MALIK AND ORTHERS v. UNION OF INDIA

Ishwar Devi Malik and Others: Appellant

12. As regards the compensation payable to the appellants (applicants), it has to be

SMT. SUSHMA MITRA v. MADHYA PRADESH STATE ROAD

Smt. Sushma Mitra: Appellant

Madhya Pradesh State Road: Respondent

MUNICIPAL CORPORATION OF DELHI v. SUBHAGWANTI &

JASBIR KAUR AND ANOTHER v. STATE OF PUNJAB AND

Jasbir Kaur: Appellant

State of Punjab: Respondent

AIR 1995 P H 278

3. In reply, it is submitted that a preliminary inquiry was conducted in which it is stated to

Lord Chancellor Cairns

PONTING v NOAKES AND OTHERS

Noakes and others: Respondent

QUEEN'S BENCH DIVISION: Charles and Henn Collins JJ

T.C.BALAKRISHNAN MENON AND OTHERS v. T.R.

T.R. Subramanian and Another: Respondent

AIR 1968 Ker 151

3. A minnal gundu is an explosive made out of a coconut shell by filling it with an

Rowlatt and Wright JJ.

Repairers were negligent as bailees and liable for damage.

2. The jury found no negligence. An exceptionally heavy rainstorm was a sufficient

3. Mellish LJ distinguished Ryland v Fletcher: But the present case is distinguished

M.C. MEHTA AND ANOTHER v. UNION OF INDIA

M.C. Mehta and Another: Appellant

Union of India: Respondent

or on behalf of a woman or a child or a class or deprived or disadvantaged persons.